In the Supreme Court of India Civil Apellate Jurisdiction Special Leave Petition No. ___Of 2020 [With Prayer for Interim

IN THE SUPREME COURT OF INDIA CIVIL APELLATE JURISDICTION

SPECIAL LEAVE PETITION NO. ______OF 2020

[WITH PRAYER FOR INTERIM RELIEF]

[Against the Impugned Interim Order dated 21.07.2020 passed by the Hon’ble High Court of Rajasthan at Jaipur in D. B. Civil Writ Petition No. 7451 / 2020]

IN THE MATTER OF:

The Hon’ble Speaker, Rajasthan Legislative Assembly …Petitioner

VERSUS

Prithviraj Meena & Ors. …Respondents WITH

IA No. ______of 2020: Application for exemption from filing certified copy of the Impugned Order.

IA No. ______of 2020: Application for Seeking Exemption from filing the official translation of Annexure – P32.

IA No. ______of 2020: Application seeking listing due to extreme urgency and exemption from filing duly affirmed affidavit.

PAPER-BOOK [For Index, please see inside]

ADVOCATE FOR THE PETITIONER: SUNIL FERNANDES

RECORD OF PROCEEDINGS S.NO DATE OF RECORD OF PROCEEDING PAGES

I N D E X

Sl. PARTICULARS Page Nos. of part to Remarks No. which it belongs Part 1 Part 2 (Contents (Contents of Paper of file Book) alone) Court Fees Rs. Rs.

1. O/R on Limitation A A

2. Listing Proforma A1 – A2 A1 – A2

3. Cover Page of Paper Book A3

4. Index of Record of Proceedings A4

5. Limitation Report prepared by A5 the Registry 6. Defect List A6

7. Note Sheet NS1 -

8. Synopsis and List of Dates B - Q

9. Impugned Interim Order dated 1- 4 21.07.2020 passed by the Hon’ble High Court of Rajasthan at Jaipur in D. B. Civil Writ Petition No. 7451 / 2020. 10. Special leave Petition with 5-23 supporting affidavit 11. APPENDIX 24-27 - Article 102 of the Constitution of India. - Article 191 of the Constitution of India - Para 2 of the Tenth Schedule to the Constitution of India. 12. ANNEXURE P – 1 28-34 A True copy of the Disqualification Petition dated14.07.2020 filed by the Chief Whip, Dr. Mahesh Joshi against Shri Hemaram Choudhary MLA, before the Hon’ble Speaker, Rajasthan legislative Assembly

13. ANNEXURE P – 2 35-36 A true translated copy of the Speaker’s Notice dated 14.07.2020.

14. ANNEXURE P – 3 37-56 A true copy of the original Writ Petition dated 16.07.2020 titled Prithvi Raj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., S.B. Civil Writ Petition No. 7451/2020 before the Hon’ble High Court of Rajasthan at Jaipur.

15. ANNEXURE P – 4 57-58 A true copy of the 1st order dated 16.07.2020 passed by the Ld. Single Judge in Prithvi Raj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., S.B. Civil Writ Petition No. 7451/2020.

16. ANNEXURE P – 5 59 A true copy of the 2nd order dated 16.07.2020 passed by the Ld. Single Judge in Prithviraj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., S.B. Civil Writ Petition No. 7451/2020.

17. ANNEXURE P – 6 60-81 A true copy of the amended writ petition vide No. D.B. Civil Writ Petition No. 7451/2020 filed by the Respondents before the Hon’ble High Court.

18. ANNEXURE P – 7 82-84 A true copy of the order dated 17.07.2020 passed by the Hon’ble Division Bench of the Rajasthan High Court in Prithviraj Meena & Ors v. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors. vide D.B. Civil Writ Petition No. 7451/2020.

19. ANNEXURE P – 8 85-99 A true copy of the written submission dated nil filed on behalf of the Chief Whip.

20. ANNEXURE P – 9 100-104 True Copy of the Written Submission filed on behalf of the Hon’ble Speaker.

21. IA No. ______OF 2020: 105-107 Application for exemption from filing certified copy of the Impugned Order.

22. IA No. ______OF 2020: 108-110 Application for seeking Exemption from filing the official translation of Annexure – P2.

23. IA No. ______OF 2020: 111-114 Application seeking listing due to extreme urgency and exemption from filing duly affirmed affidavit.

24. Filing Memo 115

25. Vakalatnama 116

26. Memo of Parties 117-120

A IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURIDICTION SPECIAL LEAVE PETITION (C) NO. OF 2020

IN THE MATTER OF: - The Hon’ble Speaker, Rajasthan Legislative Assembly …Petitioner

VERSUS

Prithviraj Meena & Ors. …Respondents

OFFICE REPORT ON LIMITATION

1. The Petition is within time.

2. The Petition is barred by time and there is delay of _____ days in filing the same against final order dated 21.07.2020 and petition for condonation of ____ days delay has been filed.

3. There is delay of ______day in re-filing the petition and petition for condonation of ______days delay in re-filing has been filed.

FILED ON: 22.07.2020 (BRANCH OFFICER)

A-1 PROFORMA FOR FIRST LISTING SECTION: XV This case pertains to (Please tick/ check the correct box): Central Act: (Title) Constitution of India Section/ Article: Art. 102, 191, Para 2 of Schedule X Central Rule : (Title) ………….. N.A. Rule No(s) ………….. N.A. State Act: (Title) N.A

Section : N.A. State Rule : (Title) ………….. N.A. Rule No(s): ………….. N.A. Impugned Interim Order : 21.07.2020 Impugned Final Order /Decree: ………….. N.A. High Court : (Name) HIGH COURT OF RAJASTHAN AT JAIPUR Names of Judges: Hon’ble the Chief Justice Indrajit Mahanty Hon’ble Mr. Justice Prakash Gupta

Tribunal /Authority : ……………………..N.A. (Name)

1. Nature of the matter CIVIL CRIMINAL

2. a) Petitioner: The Hon’ble Speaker, Rajasthan Legislative Assembly. b) Email I.D. …………..N.A. c) Mobile phone number: …………..N.A. 3. a) Respondent No.1 Prithviraj Meena & Ors. b) Email I.D. N/A c) Mobile phone number: N/A 4. a) Main category 09 classification b) Sub-classification: 0912 5. Not to be listed before: N/A 6. a) Similar disposed of matter No similar matter disposed of with citation, if any & case details:

A-2

b) Similar pending matter No similar pending matter with case details: 7. Criminal Matters: a) Whether accused /convict has Yes No surrendered: b) FIR No……….... Date: ……………………………… N/A c) Police Station: ……………………………… N/A d) Sentenced awarded ……………………………… N/A e) Sentence Undergone: ……………………………… N/A 8. Land Acquisition Matters: …...…………………....N/A a) Date of Section 4 notification : …...…………………… N.A b) Date of Section 6 notification : …...……………………N.A c) Date of Section 17 notification …...…………………….N.A 9. Tax Matters : State the Tax …...……………………N.A effect: 10. Special Category: (first petitioner/ appellant only): N.A Senior citizen > 65 years SC/ ST Woman /child Disabled Legal Aid case in custody 11. Vehicle Number (in case of Motor Accident Claim ………… matters) :

Date: 22.07.2020 [SUNIL FERNANDES] Advocate for the Petitioners AOR Code: 1721 A-178, Lower Ground Floor Defence Colony, New Delhi-110024 Mobile: +91 9891639491 Landline/Fax: 011-41084945, 41043573/46702466 Email: [email protected]

SYNOPSIS

1. The Petitioner, Speaker of Rajasthan Legislative Assembly, is constrained to move this instant Special Leave Petition, urgently against the quia timet order dated 21.07.2020, in D.B. Civil Writ Petition No.7451/2020 (“Impugned interim Order”) by which the Hon’ble High Court of Rajasthan, has intervened in pending Tenth Schedule proceedings at the initial notice stage itself and restrained the Speaker – Petitioner herein from even calling of replies and conducting the disqualification proceedings pending against the Respondents till 24.07.2020. The relevant portion of the direction in the impugned order in this regard reads as follows:

“In view of above directions, we therefore, further request the Hon’ble Speaker, who has been pleased to extend the period for filing reply by the writ petitioners till 5.30 p.m. as of today i.e. 21.07.2020, to extend the said period till the delivery of orders by this Court on 24/07/2020 and we direct accordingly

The matter shall be listed on 24.07.2020. The parties are directed to act accordingly”

2. The aforesaid impugned order is in the teeth of the dictum of the Constitution bench of this Hon’ble Court in Kihoto Hollohan v. Zachillhu, [(1992) Supp (2) SCC 651] and the mandate of the mandate of Para 6(2) of the Tenth Schedule read with Article 212 of the Constitution .

3. In Kihoto, a Constitution bench of this Hon’ble Court expressly held that Courts cannot interdict the speaker from proceeding ahead at the quia timet stage. In this regard, conclusion of the Hon’ble in para 110 of the judgment reads as under:

“110. … judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings.”

4. The proceedings under the Tenth Schedule before the Speaker are proceedings of the Legislature and as such cannot interfered with as repeatedly held by this Hon’ble Court as envisaged under Article 212 read with para 6(2) of the Tenth Schedule.

5. In view of the aforesaid the impugned order is ex-facie is illegal, perverse, and in derogation of the powers of the Speaker under the Constitution and hence deserve to be set aside.

FACTS IN BRIEF

6. Before adverting to the legal submission in this regard, the following brief facts may be noted:

6.1. Nineteen (19) disqualification petitions were moved by the Indian National Congress [INC] on 14.07.2020 against the Respondents interalia alleging that the Respondents by their actions had given up the membership of INC and seeking determination thereof. Notices were issued on 14.07.2020 as per the Rajasthan Legislative Assembly (Disqualification) Rules, 1989 which were made returnable on 17.07.2020. D

6.2. Instead of appearing before the Speaker and furnishing their comments to the Speaker on the allegations made in the Disqualification petition, a direct challenge was made to the High Court in WP No. 7451/2020 by the Respondents in which the impugned order has been passed.

6.3. Originally a Writ Petition was filed only challenging the notice dated 14.07.2020 and asking a declaration from the High Court that the Respondents herein were members of INC. Such a Writ Petition was totally not maintainable as will be demonstrated hereafter.

6.4. Be that as it may, when the matter was called out 1.00 pm on 16.07.2020 the Ld. Sr. Counsel for the Respondents herein made oral submission that he is challenging constitutional validity of para 2(1)(a) of the Tenth Schedule.

6.5. In about one hour at around 5.00 pm thereafter the matter was again listed before the Ld. Single Judge and the Ld. Single Judge allowed the application for amendment incorporating a prayer for challenging the constitutional validity of the Tenth Schedule.

6.6. Thereafter, the amendment was carried out and surprisingly several grounds not allowed by the Application for amendment were clandestinely incorporated by the Respondents.

6.7. On the very same day i.e. 16.07.2020 at around 7.30 pm a Division Bench was constituted by the Hon’ble High Court. As the E

arguments were to commence, the learned senior counsel appearing for the Petitioner volunteered to defer the hearing before the Speaker from morning of 17.07.2020 to the evening 5 pm 17.07.2020.

6.8. On 17.07.2020 at 1.00 pm, the Ld Division Bench of the Hon’ble High Court started hearing the Writ Petition and the counsels for the Respondents was heard till 4.30 pm. 18th and 19 the July were court holidays being Saturday and Sunday. As the Ld Senior counsel for Petitioner had started presenting his case before the Hon’ble Division Bench on 17.07.2020 itself and the hearing continued, the ld Senior counsel appearing for the Petitioner volunteered to defer the hearing, which was slated for 5pm that day i.e. 17.07.2020, to 21.07.2020 in order to conclude the arguments before the Hon’ble High Court on 20.07.2020.

6.9. The matter was thereafter heard on 20.07.2020 and on 21.07.2020 and the impugned order has been passed on 21.07.2020 at about 3.30 pm giving a direction to the Speaker not to proceed with the disqualification Petition listed at 530 pm on 21.07.2020.

RE: THE IMPUGNED ORDER IS AN AFFRONT TO THE LAW LAID DOWN BY THIS HON’BLE COURT IN PARA 109 AND 110 OF KIHOTO HOLLOHAN. 7. It is submitted that the Writ Petition filed by the Respondents is a classic case of quia timet action. The original prayers made in the WP were as follows: F

“(B) Issue a Writ of CERTIORARI OR Direction/Order in the nature of a Writ of Certiorari to quash and set aside the Show Cause Notice dated 14.07.2020 issued by the Hon’ble Speaker of the Rajasthan Legislative Assembly;

(C) Issue a Writ of Mandamus or a Direction/Order in the nature of a Writ of Mandamus declaring/upholding the status of the Petitioners as Members of the Rajasthan Legislative Assembly – the House on account of them continuing to be members of the Indian National Congress as per the Explanation (a) to Para (2) of the Tenth Schedule of the Constitution of India.

(D) Issue a Writ of Mandamus or Direction/order in the nature of a Writ of Mandamus declaring that alleged actions of the Petitioners as Members of the Rajasthan Legislative Assembly do not come within the purview of disqualification envisaged under Para (2) of the Tenth Schedule read with Article 191 of the Constitution of India;”

8. It is respectfully submitted that perusal of the aforesaid prayers would show that the prayers partake the clear character of the quia timet action which is wholly impermissible. In this regard para 109 and 110 of the judgement reads as under:

Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

110. In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.”

RE: THE NOTICE DATED 14.07.2020 IS A PROCEEDING IN THE HOUSE UNDER ARTICLE 212 AND IMMUNE FROM JUDICIAL INTERFERENCE AT THAT STAGE:

9. It is respectfully submitted that the notice dated 14.07.2020 was only limited to inviting comments from the Respondents and there was nothing adverse against the Respondents. It is submitted that such a notice is not the final determination or decision on disqualification but only a commencement of the proceedings. The proceedings including the notice dated 14.07.2020 are in the realm H

of the legislative proceedings under Para 6(2) of the Tenth Schedule. Article 212 of the Constitution and Para 6(2) of the Tenth Schedule read as follows:

212. Courts not to inquire into proceedings of the Legislature.—(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

Para 6(2) of the Tenth Schedule reads as follows: 6. Decision on questions as to disqualification on ground of defection.—(1) ......

(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.

10. If the final decision of the speaker is amenable to judicial review on limited ground, it is inconceivable that the notice dated 14.07.2020 calling for comments on the disqualification is subject to judicial review. Article 212 clearly bars the challenge. In this regard, I attention of this Hon’ble Court is invited to the judgment of the Seven Judge Bench decision of the Hon’ble Supreme Court in Pandit M.S.M. Sharma v. Sri Krishna Sinha, [(1959) Supp (1) SCR 806]. Para 10 of the judgment read as follows:

“10. It now remains to consider the other subsidiary questions raised on behalf of the petitioner. It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this Court, the petitioner has not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings. It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the J

procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution vide Janardan Reddy v. State of Hyderabad [(1951) SCR 344] .

11. The scheme of Tenth Schedule, para 6(1), and para 6(2) envisions a limited interference by the Courts in matters concerning the disqualification of Members even where final orders of disqualification are passed. Even after the final reasoned Order of the Speaker is passed, the Hon’ble Apex Court and the High Courts both have held that there are limited grounds for interfering. [Kihoto Hollohan v Zachillhu (1992) Supp 2 SCC 651, paras at para 110 (placitum d,e), Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council 2004 (8)SCC 747 para 8, 8.1 and Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595 para 121] namely, if principles of natural justice have been violated, or if the Order is malafide, patently perverse or alleged irregularity, none of which applies in the present case as the disqualification petition is at a preliminary stage. K

RE: MERE CHALLENGE TO THE CONSTITUTIONAL VALIDITY OF PARA 2(1)(A) CANNOT IPSO FACTO RESULT IN PARA 2(1)(A) BEING EFFACED FROM THE CONSTITUTION:

12. It is respectfully submitted that the impugned order passed by the Hon’ble High Court is in effect a stay on the powers of the Speaker under the Tenth Schedule to adjudicate on a disqualification petition. It is submitted that merely because the Respondents seek to challenge the constitutional Validity of Para 2(1)(a), the same cannot be a ground for constricting the power of the Speaker to even call for reply in the disqualification proceedings of which he is the master till the final decision is rendered. Moreover, it is to be pointed out that the Speaker is the persona designata under the Constitution, who has exclusive, non-transferable, and non- delegable powers and authority to adjudicate on the issues of disqualification. [Speaker, Haryana Vidhan Sabha v Kuldip Singh (2015) 12 SCC 381, para 16, 18-20, 22].

13. Under Para 6(2) of the Tenth Schedule of the Constitution, the proceedings before the Speaker are proceedings in the House, thereby attracting the bar from interference by the Courts under Article 212 of the Constitution. [Para 10, Pandit MSM Sharma v. Dr. Krishna Sinha, (1961) 1 SCR 96,].

14. In these circumstances it is respectfully submitted that the impugned order which is in(a)direct contravention Para 6(2) of the Tenth Schedule; and (b) direct contravention to the law laid down by this Hon’ble Court in para 109 and 110 of the Kihoto (supra) is liable to be immediately stayed so that the dignity of Constitutional authorities envisaged by the Constitution is protected. L

15. This Hon’ble Court as the sentinel on the qui vive has a duty to ensure that the all the authorities under the Constitution exercise their jurisdiction within the boundaries and respective ‘Lakshman Rekha’ envisaged by the Constitution itself. Judiciary was never expected under the Tenth Schedule to interfere in the manner it has done in the instant case resulting in this constitutional impasse warranting the instant Special Leave Petition which is being filed with an urgent request to take up the matter at the earliest convenience of this Hon’ble Court.

Hence, the present Special Leave Petition.

LIST OF DATES

DATE PARTICULARS

14.07.2020 The Chief Whip of the INC files Disqualification Petitions against 19 MLAs including Shri Sachin Pilot before the Hon’ble Speaker of the Rajasthan Assembly on 14.07.2020. For the kind perusal of this Hon’ble Court, one such disqualification petition is annexed hereto. A True copy of the Disqualification Petition dated14.07.2020 filed by the Chief Whip, Dr. Mahesh Joshi against Shri Hemaram Choudhary MLA, before the Hon’ble Speaker, Rajasthan legislative Assembly is annexed hereto and marked as ANNEXURE P-1 [Pg Nos. 28 to 34] M

14.07.2020 As required under the Rajasthan Legislative Assembly Member (Disqualification on the grounds of changing Party) Rules, 1989(‘1989 Rules’), the Hon’ble Speaker issued notices on the 14th of July, 2020, directing all the 19 Respondents to submit their written comments to the Disqualification Petitions filed against each one of them in 3 days i.e uptill 17.07.2020. A true translated copy of the Speaker’s Notice dated 14.07.2020 is annexed hereto and marked as ANNEXURE P-2 [Pg. Nos. 35 to 36]

16.07.2020 Instead of complying with the Speaker’s notice and filing their comments to the Disqualification Petitions, all 19

MLAs filed a Writ Petition before the Hon’ble High Court of Rajasthan, challenging the Speaker’s Notice dated 14.07.2020 itself. A true copy of the original Writ Petition dated 16.07.2020 titled Prithvi Raj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., S.B. Civil Writ Petition No. 7451/2020 before the Hon’ble High Court of Rajasthan at Jaipur, is annexed hereto and marked as ANNEXURE P-3 [Pg. Nos. 37 to 56]

16.07.2020 When the matter was taken up on the same day by the Ld. Single Judge, the Ld. Senior Counsel appearing on N

behalf of the Petitioners submitted to the Hon’ble Court AT 1 PM that he wishes to file an Application to amend the Writ Petition so as to challenge constitutional validity Tenth Schedule and requested that the amendment be allowed the matter to be heard by a Division Bench.

The Ld. Single Judge permitted the said request and directed listing of the matter on the filing of the amendment application.

A true copy of the 1st order dated 16.07.2020 passed by the Ld. Single Judge in Prithvi Raj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., S.B. Civil Writ Petition No. 7451/2020, is annexed hereto and marked as ANNEXURE P-4 [Pg. Nos. 57 to 58 ]

16.07.2020 The Petitioners filed an amendment application.

16.07.2020 The matter was once again taken up in the evening by the Ld. Single Judge. The Ld. Judge recorded the Petitioner’s AT 5pm submission that they “want to incorporate only one ground to challenge the constitutional validity of the provision of Schedule 10 of the Constitution of India” and proceeded to allow the same, further referring the matter to be heard by a Division Bench. O

A true copy of the 2nd order dated 16.07.2020 passed by the Ld. Single Judge in Prithviraj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., S.B. Civil Writ Petition No. 7451/2020, is annexed hereto and marked as ANNEXURE P-5 [Pg. No. 59 ]

Thereafter, the amendment was carried out and surprisingly several grounds not allowed by the Application for amendment were clandestinely incorporated by the Respondents

Copy of the Amended Writ Petition vide No. D.B. Civil Writ Petition No. 7451/2020 filed by the Respondents before the Hon’ble High Court is annexed hereto and marked as ANNEXURE P-6 [Pg. Nos. 60 to 81]

On the very same day i.e. 16.07.2020 at around 7.30 pm 16.07.2020 a Division Bench was constituted by the Hon’ble High around 7.30pm Court. As the arguments were to commence, the learned senior counsel appearing for the Petitioner volunteered to defer the hearing before the Speaker from morning of 17.07.2020 to the evening 5 pm 17.07.2020.

On 17.07.2020 at 1.00 pm the Division Bench of the 17.07.2020 Hon’ble High Court started hearing the Writ Petition and the counsels for the Respondents was heard till 4.30 pm. P

18th and 19 th July were court holidays being Saturday and Sunday. As the Ld Senior counsel for Petitioner had started presenting his case before the Hon’ble Division Bench on 17.07.2020 itself and the hearing continued, the ld Senior counsel appearing for the Petitioner volunteered to defer the hearing, which was slated for 5pm that day i.e 17.07.2020, to 21.07.2020 in order to conclude the arguments before the Hon’ble High Court on 20.07.2020.

A true copy of the order dated 17.07.2020 passed by the Hon’ble Division Bench of the High Court in Prithviraj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., D.B. Civil Writ Petition No. 7451/2020 is annexed hereto and marked as ANNEXURE P-7 [Pg. Nos. 82 to 84]

20.07.2020 Arguments were advanced on both sides and concluded but some intervention applications could not be heard along with a counsels appearing for a few other parties. The Hon’ble Court decided to take up the matter again on 21.07.2020.

21.07.2020 Arguments were concluded and judgment reserved.

Copies of written submissions were exchanged between the parties and submitted to the Hon’ble Court as well.

A true copy of the written submission dated nil filed on behalf of the Chief Whip is annexed hereto as ANNEXURE P-8 [Pg. Nos. 85 to 99]. True Copy of the Q

Written Submission filed on behalf of the Hon’ble Speaker is annexed hereto as ANNEXURE P-9 [Pg. Nos. 100 to 104 ]

21.07.2020 The Hon’ble High Court vide Impugned interim order dated 21.07.2020 passed at about 330pm has proceeded to interdict the Speaker from proceeding under the Tenth Schedule of Constitution of India. The Petitioner/Speaker has been even restrained from calling replies and conducting hearing of the disqualification proceedings pending against the Respondents which is totally barred and impermissible as per the dictum of the Constitution bench of this Hon’ble Court in Kihoto Hollohan v. Zachillhu, [(1992) Supp (2) SCC 651].

22.07.2020 Hence, the present Special Leave Petition.

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

D.B. Civil Writ Petition No.7451/2020

Prithviraj Meena S/o Ram Karan Meena ----Petitioner Versus The Hon’ble Speaker ----Respondent

For Petitioner(s) : Mr. Harish Salve, Senior Advocate through VC assisted by Mr. Divyesh Maheshwari Mr. Mukul Rohatgi, Senior Advocate assisted by Mr. S. Hariharan, Ms.Jakriti Jadeja through VC Mr. Lokesh Sharma through VC Mr. Rajesh Goswami and Mr. Yashvardhan Nandwana through VC

For Respondent : Dr. Abhishek Singhvi, Senior Advocate Nos.1 & 2 assisted by Mr. Aavishkar Singhvi through VC Mr. Amit Bhandari through VC and Mr. Harendar Neel Mr. M.S. Singhvi, Advocate General assisted by Mr. Darsh Pareek and Mr. Siddhant Jain

For respondent No.3 : Mr. Prateek Kasliwal with Ms. Supriya Saxena

For respondent No.4 : Mr. Devadatt Kamat, Senior Advocate Mr. A.K. Bhandari, Senior Advocate Mr. N.K. Maloo, Senior Advocate assisted by Mr. Siddharth Bapna, Mr. Sarvesh Jain, Mr. Anuj Bhandari, Mr. Vaibhav Bhargava, Mr. Abhimanyu Yaduvanshi

For respondents No.5 : Mr. Vimal Choudhary & Mr. Yogesh Kumar Tailor

For respondents No.6 : Mr. P.C. Bhandari, Mr. Abhinav Bhandari & Mr. T.N. Sharma

For respondent No.7 : Mr. P.S. Sirohi

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HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE PRAKASH GUPTA

Order

21/07/2020

D.B. Civil Misc.Application No.1/2020:-

Counsel for the petitioners seeks to withdraw D.B. Civil

Misc. Application No.1/2020.

The prayer is accepted.

The application is accordingly dismissed as withdrawn.

D.B. Civil Misc.Application Nos.4/2020, 5/2020 & 6/2020:-

Heard learned counsels for the parties on the applications seeking intervention.

Heard also Mr. Mukul Rohatgi, learned senior counsel for the petitioner, Mr. Devadatt Kamat, learned Senior Counsel for respondent No.4 as well as Mr. M.S. Singhvi, learned Advocate

General on intervenor applications.

Having heard learned counsel for the intervenors and learned counsel for the parties, we record the fact that learned counsel appearing for the writ petitioners do not have any objection to the intervention applications to be entertained.

However, the learned Advocate General appearing for the Speaker raised contention against such intervention applications on the ground that the present writ petition is not a public interest litigation and the intervenors are neither proper nor necessary parties. Hence, the intervention applications ought not to be entertained.

Learned counsels appearing for the three intervenors inter-alia contended that the challenge made in the writ application is to the constitutional validity of para 2(1)(a) of Tenth

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Schedule to the Constitution of India. Consequently, the prayer made by the writ petitioners will have a wide public impact and, therefore, they are essentially concerned with the public interest at large.

Considering the submissions advanced by all the parties, the intervention applications are allowed. The applicants are impleaded as respondent Nos.5, 6 and 7 respectively. They shall file amended cause title, which will be taken on record. The parties are directed to serve copies of writ application as well as reply affidavit, if any, filed before this Court on the counsels who have been impleaded as respondents No.5, 6 and 7, as directed hereinabove.

D.B. Civil Writ Petition No.7451/2020:-

This Court further takes note of the fact that the written submissions have been filed on behalf of the petitioners, respondents No.1, 2 and 3 as well as respondent No.4 after the lunch break. The same are taken on record.

Having heard learned counsels for the respective parties and taking on record the submissions advanced on behalf of the respective parties as noted hereinabove, we direct that matter shall be listed on 24/07/2020 for passing of necessary orders.

In view of above directions, we therefore, further request the Hon’ble Speaker, who has been pleased to extend the period for filing reply by the writ petitioners till 5.30 p.m. as of today i.e. 21.07.2020, to extend the said period till the delivery of orders by this Court on 24/07/2020 and we direct accordingly.

(Downloaded on 21/07/2020 at 05:32:06 PM) 4 (4 of 4) [CW-7451/2020]

The matter shall be listed on 24.07.2020. The parties

are directed to act accordingly.

(PRAKASH GUPTA),J (INDRAJIT MAHANTY),CJ

Anil Goyal-PS/Harshit Pareek/JKP/1

(Downloaded on 21/07/2020 at 05:32:06 PM)

IN THE HON’BLE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION (Under Article 136 of the Constitution of India)

SPECIAL LEAVE PETITION (C) NO. OF 2020

[WITH PRAYER FOR INTERIM RELIEF] [Arising out of the Impugned interim order dated 21.07.2020 passed by the Hon’ble High Court of Rajasthan at Jaipur in Prithviraj Meena & Ors. Vs. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., in D.B. Civil Writ Petition No. 7451/2020]

IN THE MATTER OF: POSITION OF PARTIES

BETWEEN: IN THE IN THIS HON’BLE HIGH COURT COURT

THE HON’BLE SPEAKER, Respondent Petitioner RAJASTHAN LEGISLATIVE No. 1 ASSEMBLY, JAIPUR, RAJASTHAN Versus

1. PRITHVIRAJ MEENA Petitioner No. Contesting S/O RAM KUMAR MEENA 1 Respondent 9 BISWA, THODABIM No.1 RAJASTHAN

2. VED PRAKASH SOLANKI Petitioner No. Contesting AGED ABOUT – 44 YEARS 2 Respondent S/O SHRI MATA PRASAD SOLANKI No.2 MLA, N-35, GANDHI NAGAR, JAIPUR – I 6

3. SURESH MODI Petitioner Contesting S/O MOHAN LAL MODI No.3 Respondent MAYA BHAWAN, No.3 NEEM KA THANA, DISTT. SIKAR

4. VISHWENDRA SINGH Petitioner No. Contesting BRIJENDRA SINGH, 4 Respondent 18D, CIVIL LINES, No. 4 JAIPUR

5. DEEPENDRA SINGH Petitioner No. Contesting LATE BHARAT SINGH 5 Respondent No. 5 VILL. MAU, THE. SHRIMADHOPUR DIST: SIKAR, RAJASTHAN

6. SACHIN PILOT Petitioner No. Contesting AGED ABOUT 42 YEARS, 6 Respondent No. 6 S/O LATE SHRI RAJESH PILOT R/O VPO, 11, CIVIL LINE, JAIPUR

7. BHAWARLAL SHARMA Petitioner No. Contesting S/O MANAK RAM SHARMA 7 Respondent No. 7 46-47, SARDAR SHAHAR HOUSE, GRAENADE MARK, PRATAP NAGAR, KATHIPURA, JAIPUR

8. GAJRAJ KHATANA Petitioner No. Contesting S/O LATE SURAJ BHAN 8 Respondent No. 8 65, BHAGWATI NAGAR – I JAIPUR

9. INDRAJ Petitioner No. Contesting S/O UMRAO LAL GURJAR, 9 Respondent No. 9 578, GANGA MATA TEMPLE AREA, PAVOTA TEHSIL, KOTPULI, JAIPUR 7

10. GAJENDRA SINGH SHAKTAWAT Petitioner No. Contesting S/O SHRI GULAB SINGH 10 Respondent No. 10 SHERAWAT, SHAKTAWAT FARM HOUSE, BEHIND POLICE STATION, BHEENDER, UDAIPUR – I

11. HEMA RAM CHOUDHARY Petitioner No. Contesting MOOLA RAM CHOUDHARY 11 Respondent No. 11 VILL ADARSH LUK DHAURI MANA RAJASTHAN

12. RAM NIWAS GAWRIYA Petitioner No. Contesting AGED ABOUT – YEARS 12 Respondent No. 12 S/O SHRI RAGHU RAM, MLA, R/O NEAR MARWAR SCHOOL, JHALRA ROAD, KUCHAMAN CITY, NAGAUR, RAJASTHAN

13. AMAR SINGH Petitioner No. Contesting 51 YEARS 13 Respondent No. 13 SUKH RAM JATAV BASTI, BASAI, POST – BANSI PAHLAD PUR, THE ROOPWAS, BHARATPUR

14. BRIJENDRA SINGH OLA, Petitioner No. Contesting AGED ABOUT 51 YEARS, 14 Respondent No. 14 S/O SHRI SISRAM OLA, 96, GOURAV NAGAR, CIVIL LINES, JAIPUR

15. MURARI LAL MEEN Petitioner No. Contesting S/O NARAYAN LAL MEENA 15 Respondent No. 15 R-5H/101-102, INDIRA GANDHI NAGAR, JAIPUR

16. MUKESH KUMAR BHAKAR Petitioner No. Contesting SURJA RAM 16 Respondent No. 16 LADUN, VPO, KHARIYA THE: DIDWANA DIST: NAGUR RAJASTHAN

17. RAKESH PAREKH Petitioner No. Contesting S/O SHRI RAMESHWAR LAL 17 Respondent No. 17 PARIKH, VILLAGE MIYAN, BHAGWAN PURA, SARWAD, AJMER

18. HARISH MEENA Petitioner No. Contesting S/O SHRI NARAYAN MEENA 18 Respondent No. 18 MLA, NO. 10 JAWAHAR NAGAR, JAIPUR – 4

19. RAMESH CHAND MEENA Petitioner No. Contesting S/O SHANKAR LAL MEENA 19 Respondent No. 19 H NO. 52, VILL NAYA GAON, POST RANIPURA THE: MADRAYAL KARAULI, RAJASTHAN

20. SHRI. MAHESH JOSHI Respondent Pro forma CHIEF WHIP INDIAN NATIONAL No. 4 Respondent No. 20 CONGRESS LEGISLATURE PARTY, B-20, SAIN COLONY, NEAR RAILWAY STATION, JAIPUR, (RAJASTHAN)

21. THE SECRETARY Respondent Pro forma RAJASTHAN LEGISLATIVE No. 2 Respondent No. 21 ASSEMBLY, JAIPUR, RAJASTHAN

THE HON'BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON'BLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH: -

1. The Petitioner is constrained to invoke the jurisdiction of this Hon’ble Court under Article 136 of the Constitution, being aggrieved by the Impugned interim order dated 21.07.2020 passed by the Hon’ble Division Bench of the High Court of Rajasthan at Jaipur in Prithviraj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., D.B. Civil Writ Petition No. 7451/2020 (“Impugned Interim Order”).The Hon’ble High Court has vide the said interim order sought to interdict the Tenth Schedule proceedings pending before the Speaker/Petitioner herein, against the Contesting Respondents and directed the Petitioner to extend the period for filing reply by the Contesting Respondents till 24.07.2020.

1A That the Respondent No. 3- Mr. C.P Joshi, Hon’ble Speaker and Respondent No. 1 – the Hon’ble Speaker, before the Hon’ble High Court is the same party, i.e., the Petitioner herein. That Respondent No. 4-Shri. Mahesh Joshi Chief Whip Indian National Congress Legislature Party was not made a party before the Hon’ble High Court by the Respondents, while filing of the writ petition, however the said Respondent No. 4 was impleaded during the course of the proceedings before the High Court. 10

2. QUESTIONS OF LAW

It is submitted that the present SLP raises the following substantial questions of law for the consideration of this Hon’ble Court:

I. Whether the Court can interfere in pending disqualification proceedings before the Speaker in view of the clear bar under Article 212 read para 6(2) of the Tenth Schedule of the Constitution?

II. Whether the impugned order could have been passed in the face of the law laid down by a Constitution Bench of this Hon’ble Court in Kihoto Hollohan v. Zachillhu,[(1992) Supp 2 SCC 651], which has been followed consistently till as recently as in Keisham Meghachandra Singh v. Hon'ble Speaker Manipur Legislative Assembly,[2020 SCC OnLine SC 55]?

III. Whether the notice dated 14.07.2020 is a proceeding in the House under Article 212 and para 6(2) of the Tenth Schedule?

IV. Whether mere challenge to the constitutional validity of Para 2(1)(a) ipso facto result in para 2(1)(a) being effaced from the Constitution?

V. Whether the Hon’ble High Court could have done indirectly something that could not have done directly and settled by this Hon’ble Court? 11

VI. Whether requiring the Petitioner to adjourn proceedings under the Tenth Schedule, on any ground, amounts to granting a quia timet relief in effect?

VII. Whether the pendency of a non maintainable, premature Writ Petition could be turned into the sword of Damocles hanging over the Tenth Schedule proceedings?

3. DECLARATION IN TERMS OF RULE 3(2)

The Petitioner submits that no other petition seeking leave to appeal has been filed by him against the Impugned interim order dated 21.07.2020 passed by the Hon’ble Division Bench of the High Court of Rajasthan at Jaipur in Prithviraj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., D.B. Civil Writ Petition No. 7451/2020.

4. DECLARATION IN TERMS OF RULE 5:

The Annexures P-1 to P- 9 produced along with the Special Leave Petition are true copies of the pleading/documents which form a part of the records of the case in the Courts below.

5. GROUNDS:

Leave to appeal is sought for on the following amongst other grounds,

which may be read in addition and without prejudice to each other: 12

A. FOR THAT, the Hon’ble High Court erred in passing the impugned interim order interdicting the Speaker from proceeding under the Tenth Schedule of Constitution of India till24.07.2020.

B. FOR THAT, the Hon’ble High Court erred in restraining the Speaker from calling replies and conducting hearing of the disqualification proceedings pending against the Respondents which is totally barred and impermissible as per the dictum of the Constitution bench of this Hon’ble Court in Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, the relevant portion of which reads as under:

“109. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Paragraph 6, the scope of judicial review under Articles 136, and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

C. FOR THAT, the Hon’ble High Court erred in passing the impugned order in effect staying the notice dated 14.07.2020 which is impermissible and directly contravenes a qua timet prohibition in Tenth Schedule proceedings.

D. FOR THAT, the impugned order is a direct intrusion into the exclusive domain of the Speaker and the impugned order is against the mandate of Article 212 of the Constitution r/w Para 6(2) of the Tenth Schedule.

E. FOR THAT, the Hon’ble High Court failed to appreciate that the impugned order destroys the delicate balance envisaged by the Constitution between the legislature and the judiciary.

F. FOR THAT, the impugned order is ex-facie is illegal, perverse and affront to the powers of the legislature and the speaker envisaged under the Constitution.

G. FOR THAT, the Hon’ble High Court failed to appreciate that the notice dated 14.07.2020 is a proceeding in the house and Article 212 and immune from judicial interference at that stage.

H. FOR THAT, the Hon’ble High Court ought to have considered that the notice dated 14.07.2020 was only limited to inviting comments from the Respondents and there was nothing adverse against the Respondent at that stage.

I. FOR THAT, a notice is much prior to any final determination or decision on disqualification. The proceedings including the notice dated 14.07.2020 are in the realm of the legislative proceedings under Para 6(2) of the Tenth Schedule.

J. FOR THAT, the Hon’ble High Court ought to have appreciated that only the final decision of the speaker is amenable to judicial review on limited grounds.

K. FOR THAT it is inconceivable that the notice dated calling for comment on the disqualification is subject to judicial review.

L. FOR THAT Article 212 clearly bars the challenge. In this regard, attention of this Hon’ble Court is invited to the judgment of the Seven Judge Bench decision of the Hon’ble Supreme Court in Pandit M.S.M. Sharma v. Sri Krishna Sinha, [(1959) Supp (1) SCR 806. Para 10 of the judgment read as follows:

be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.

M. FOR THAT, the scheme of Tenth Schedule, para 6(1), para 6(2) and para 7 envisions a limited interference by the Courts in matters concerning the disqualification of Members even where final orders of disqualification are passed.

N. FOR THAT, even after the final reasoned Order of the Speaker is passed, the Hon’ble Apex Court and the High Courts both have held that there are limited grounds for interfering. [Kihoto Hollohan v Zachillhu (1992) Supp 2 SCC 651, paras at para 110 (placitum d,e), Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council 2004 (8)SCC 747 para 8, 8.1 and Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595 para 121] namely, if principles of natural justice have been violated, or if the Order is malafide, patently perverse or alleged irregularity, none of which applies in the present case as the disqualification petition is at a preliminary stage.

O. FOR THAT, the Hon’ble High Court ought to have appreciated that mere challenge to the constitutional validity of para 2(1)(a) cannot ipso facto result in para 2(1)(a) is effaced from the Constitution.

P. FOR THAT, the impugned order passed by the Hon’ble High Court is in effect a stay on the powers of the Speaker under the Tenth Schedule to adjudicate on a disqualification petition..

Q. FOR THAT, merely because the Respondents seek to challenge the constitutional Validity of Para 2(1)(a) the same cannot be a ground for constricting the power of the Speaker to even call for reply in the disqualification proceedings of which he is the master till the final decision is rendered..

R. FOR THAT, the Speaker is the persona designata under the Constitution, who has exclusive, non-transferable, and non-delegable powers and authority to adjudicate on the issues of disqualification. [Speaker, Haryana Vidhan Sabha v Kuldip Singh (2015) 12 SCC 381, para 16, 18-20, 22].

S. FOR THAT, the Hon’ble High Court failed to appreciate under Para 6(2) of the Tenth Schedule of the Constitution the proceedings before the Speaker are proceedings in the House, thereby attracting the bar from interference by the Courts under Article 212 of the Constitution. [Para 10, Pandit MSM Sharma v. Dr. Krishna Sinha, (1961) 1 SCR 96,].

T. FOR THAT, the impugned order which is in (a) direct contravention Para 6(2) of the Tenth Schedule; and (b) direct contravention to the law laid down by this Hon’ble Court in para 109 and 110 of the Kihoto (supra) is liable to be immediately stayed so that the dignity of Constitutional authorities envisaged by the Constitution is protected.

U. FOR THAT, this Hon’ble Court as the sentinel on the qui vive has a duty to ensure that the all the authority under the Constitution exercise their jurisdiction within the boundaries and respective ‘Lakshman Rekha’ envisaged by the Constitution itself.

V. FOR THAT, judiciary was never given a role by the Constitution under the Tenth Schedule to interfere in the manner it has done in the instant case resulting in this impasse.

W. FOR THAT, the Hon’ble High Court failed to appreciate that the writ petition is clearly not maintainable in view of prayers (c) and (d), which seek declaration of facts as to the validity of the membership of the Respondent MLAs. This attempt at overreaching the clear and categorical power vested in the Speaker under Para 6(1), to decide any question as to disqualification of a member from the House in itself deprives the Writ Petition of any semblance of legitimacy in itself, which ought to be dismissed as not maintainable.

X. FOR THAT, the impugned order is otherwise bad in law, a direct affront to the powers of the legislature and the speaker envisaged under the Constitution and deserves to be set aside.

Y. The Petitioner craves leave of this Hon’ble Court to raise/make any such additional grounds and submissions at the time of hearing.

6. GROUNDS FOR INTERIM PRAYER: The Petitioner seeks interim relief on the following grounds:

A. FOR THAT the Petitioner has been able to demonstrate a prima facie case in his favor in as much the law is very well settled right from the decision of the Constitution Bench in Kihoto Hollohan v. Zachillhu, [(1992) Supp 2 SCC 651], followed consistently till as recently as in Keisham Meghachandra Singh v. Hon'ble Speaker Manipur Legislative Assembly, [2020 SCC OnLine 55], on the proposition that judicial review of the proceedings under the tenth schedule is available only at the stage after the pronouncement of the order by the Speaker.

B. FOR THAT the balance of convenience is also in favor of the Petitioner in as much as he is the persona designate under the Tenth Schedule to adjudicate the proceedings thereunder.

C. FOR THAT in the event the interim relief is not granted the Constitutional balance which has so delicately been balance so far would be struck off balance.

7. MAIN PRAYER:

In the facts and circumstances mentioned hereinabove it is most humbly prayed that this Hon’ble Court may be pleased to: a) Grant special leave to appeal against the Impugned interim order dated 21.07.2020 passed by the Hon’ble Division Bench of the High Court of Rajasthan at Jaipur in Prithviraj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., D.B. Civil Writ Petition No. 7451/2020; and b) pass any other order(s) as this Hon’ble Court may deem fit and proper in the interests of justice.

8. PRAYER FOR INTERIM RELIEF: In view of the facts and circumstances it is most respectfully prayed that, this Hon’ble Court may be pleased to: a) Pass an ad-interim ex-parte order staying impugned interim order dated 21.07.2020 passed by the Hon’ble Division Bench of the High Court of Rajasthan at Jaipur in Prithviraj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., D.B. Civil Writ Petition No. 7451/2020; and b) Pass an ad-interim ex-parte order staying further proceedings in interim order dated 21.07.2020 passed by the Hon’ble Division Bench of the High Court of Rajasthan at Jaipur in Prithviraj Meena & Ors. V. Hon’ble Speaker, Rajasthan Legislative Assembly & Ors., D.B. Civil Writ Petition No. 7451/2020.; and 20

c) Pass any other order(s) as it may deem fit in the interests of justice.

AND FOR THIS ACT OF KINDNESS YOUR HUMBLE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY

SETTLED BY:- KAPIL SIBAL, Sr Adv. VIVEK TANKHA, Sr Adv.

DRAWN AND FILED BY:

NEW DELHI (SUNIL FERNANDES) DRAWN ON:21.07.2020 Advocate for the Petitioner FILED ON: 22.07.2020

IN THE SUPREME COURT OF INDIA CIVIL APELLATE JURISDICTION SPECIAL LEAVE PETITION NO. ______OF 2020

IN THE MATTER OF:

The Hon’ble Speaker, Rajasthan Legislative Assembly …PETITIONER

VERSUS

Prithviraj Meena & Ors. …RESPONDENTS

CERTIFICATE Certified that the Special Leave Petition is confined only to the pleadings before the Court whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition. It is further certified that the copies of the documents/annexures attached to the Special Leave Petition are necessary to answer the questions of law raised in the petition or to make out grounds urged in the Special Leave Petition for consideration of this Hon’ble Court. This certificate is given on the basis of the instructions given by the Petitioner/person authorized by the Petitioner whose Affidavit is filed in support of the Special Leave Petition.

FILED BY:

(SUNIL FERNANDES) Advocate for the Petitioner DRAWN ON: 21.07.2020 FILED ON: 22.07.2020 NEW DELHI 22

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. OF 2020

IN THE MATTER OF: -

The Hon’ble Speaker, Rajasthan Legislative Assembly …Petitioner

VERSUS Prithviraj Meena & Ors. …Respondents

AFFIDAVIT

I, Dr. C.P. Joshi, aged 69 years, Speaker of the Rajasthan Legislative Assembly, 49,

Civil Lines, Jaipur - 302 006, do hereby solemnly declare as under:

1. I am the Petitioner in the instant Special Leave Petition and as such I am fully

competent and authorized to swear and depose the present affidavit and I am

fully aware of the facts and circumstances of the present case.

2. That I have read the contents of the accompanying Special Leave Petition

(Paras 1 - 8 pages 5 - 21 ) and list of dates (Pages B - Q ) and

Applications and I say that the contents therein are true to my personal

knowledge.

3. That the Annexure P - 1 to P - 9 filed along with the Special Leave Petition are

true copies of their respective originals.

4. That no part of the present affidavit is false and nothing material has been

concealed therefrom.

DEPONENT

VERIFICATION:

Verified at Jaipur on this the 21st day of July, 2020 that the contents of this

affidavit are based on the information derived from the records and also on the

basis of the information received and believed to be correct. No part of it is

false and nothing material has been concealed or suppressed there from.

DEPONENT

APPENDIX

ARTICLE 102 OF THE CONSTITUTION OF INDIA, 1950:

102. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

1[(a) ifheholdsanyofficeofprofitundertheGovernmentofIndiaortheGovern mentofanyState, other than an office declared by Parliament by law not to disqualify its holder;]

(b) if he is of unsound mind and stands so declared by a competent court;

€ if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

€ if he is so disqualified by or under any law made by Parliament.

2[Explanation.—For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.]

3[(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.]

ARTICLE 102 OF THE CONSTITUTION OF INDIA, 1950:

191. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State—

2[(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;]

(b) if he is of unsound mind and stands so declared by a competent court;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

3[Explanation.—For the purposes of this clause], a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.

4[(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.]

TENTH SCHEDULE:

Provisions as to disqualification on ground of defection

2. Disqualification on ground of defection.—(1) Subject to the provisions of 3[paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House— 26

(a) if he has voluntarily given up his membership of such political party; or

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

Explanation.—For the purposes of this sub-paragraph,— (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall,—

(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;

(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.

(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the 27

Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,—

(i) where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;

(ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph.

ANNEXURE P-1

Before the Hon'ble Speaker, Rajasthan Vidhan Sabha, Jaipur

Dr. Mahesh Joshi, Chief Whip. Indian National Congress Legislature Party, Rajasthan Vidhan Sabha, Jaipur …Petitioner

Versus

Shri Hemaram Choudhayr, Member Rajasthan Vidhan Sabha Assembly Constituency, Gudamalani (Bermer) …Respondents

RE: DISQUALIFICATION OF SHRI HEMARAM CHOUDHARY MLA FROM GUDAMALANI (BARMER), ASSEMBLY CONSTITUENCY UNDER PARA 2(1)(A) OF THE TENTH SCHEDULE OF THE CONSTITUTION OF INDIA.

I, Dr. Mahesh Joshi write to you on a matter that needs your immediate and urgent intervention and for the issuance of proceedings in accordance with the Tenth Schedule of the Constitution of India.

1. I, the undersigned am the Chief Whip of the Indian National Congress in the Rajasthan legislative Assembly.

2. Over the last several days, grave, sinister, and persistent attempts are being made to topple the duly elected government of the Indian National Congress in Rajasthan through corruption, bribery, undue influence, and other illegal means. Even the Special Operations Group (Rajasthan Police) is investigating the existence of a deep rooted and well planned conspiracy to achieve this malevolent objective. 29

3. In this context, you may not that Shri Hemaram Choudhary, the MLA from Gudamalani. Assembly Constituency, has been deliberately conspiring against the Indian National Congress (‘INC’) in order to destabilise the elected government of the INC by including in activities blatantly prejudicial to the continuation of the government and by acting openly against the interests of the party that is the INC.

In furtherance therefore, Shri Hemaram Chaudhary, MLA deliberately absented himself from the meeting of the Congress Legislature Pany held yesterday i.e. July 13th 2020 and despite a reminder and request, failed to attend the second meeting held today, i.e. Tuesday July 14th, at 10.00 AM. A copy of the email sent to him is attached herewith as ANNEXURE A-1. A message was also conveyed through SMS on cell phone # 9829240094 which is the registered telephone number of the MLA in question, in the records of the CLP. A copy of the Notice was also sent through E-mail/SMS/WhatsApp # 9829240094. It is now clear that the underlying reason and motivation is solely to act in a manner that is hostile and prejudicial to the interests of the INC and its Government in Rajasthan.

4. That Hemaram Choudhary, MLA is acting in correct, as a group headed by Shri Sachin Pilot. MLA and in association with other MLAs namely Shri Bhanwar Lal Sharma, Shri Harish Chandra Meena and Shri Deependra Singh, Shri Gajraj Khatana, Shri Amar Singh, Shri Gajendra Singh Shaktawat, Shri Indraj Singh Gurjar, Shri Mukesh Kumar Bhakar, Shri Murari Lal, Shri Prithviraj, Shri Rakesh 30

Pareek, Shri Ramesh Chand Meena, Shri Ramniwas Gawriya, Shri Suresh Modi, Sari Ved Prakash Solanki, Shri Brijendra Singh Ola and Shri Vishvendra Singh.

That the conspiracy and conduct of Shri Hemaram Choudhary MLA along with the other group of MLAs in a manner prejudicial and harmful to the interests of the INC and its Government is apparent from the following actions and statement of individuals all claiming to be speaking on his behalf or in his interest, coincidentally on the same day to different media houses:

• Shri Bhanwar Lal Sharma has in a statement to Smt. Pallavi Ghosh of CNN-IBN on July 13th, 2020 called for a floor test against his own party and the Government of which he himself is a part. He has projected himself to be part of a group of MLAs led by Shri Sachin Pilot, Deputy CM.

• Another MLA belonging to this same cohort Shri Harish Chandra Meena, MLA Deoli has gone even further and on the same day to Smt. Navika Kumar of Times Now made a motivated allegation that the people of Rajasthan have been cheated by the Congress Government.

• Shri Deependra Singh, who also indentifies as a member of this cohort, has again on the same day, i.e. July 13th, 2020, gone on the channel AajTak and to Smt. Anjana Om Kashyap reiterated 31

the demand made by Shri Sharma above for a floor test against his own party’s Government.

• Respondent including persons stated as above have gathered and stayed in a hotel ITC Grand Bharat at Manesar, Haryana which is outside the state of Rajasthan just to flour the directions to attend the meeting as mentioned in Para 3.

These are open challenges to the authority of the party leadership and represent an undeniable expression of a malicious revolt against the party and its ideology. The immediate conclusion that flows from these statements is that Shri Hemaram Choudhary MLA along with those individuals cited above have all voluntarily given up membership of the Indian National Congress party by conspiring against the party and by acting in a manner prejudicial and harmful to the interests of the party and the Rajasthan Congress Government.

5. The Supreme Court has unequivocally held that in cases where the conduct of the legislator leads inescapably to the inference of his or her desire to voluntarily give up membership of the party, then they attract the provisions of para 2(1)(a) of the Tenth Schedule and must be disqualified as voluntarily having resigned from the party membership.

As stated in the Constitution Bench (5-Judges) decision of the Supreme Court in the case of Rajendra Singh Ranu vs. Swami Prasad Maurya & Ors. [(2007) 4 SCC 270]; 32

“Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in opposition and the submission of letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly, an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within paragraph 2(1)(a) of the Tenth Schedule.”

In support of this proposition the observations of the Supreme Court in Ravi S. Naik v. Union of India (1994 Supreme Court (1) 754) are also relevant. The Supreme Court in Ravi Naik’s case stated that even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. [See also Supreme Court decision (3-Judge_bench) in Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Assembly (27 October, 2004) wherein a member was disqualified under the Tenth Schedule for his conduct off the floor of the house].

6. In sum, the individual in question has, despite requests; (i) deliberately absented himself from not one but two successive meetings of the Congress Legislature Party; (ii) conspired to bring 33

down the elected government of the INC in Rajasthan; (iii) conducted himself in an openly hostile and prejudicial manner to the interests of INC and its Government in Rajasthan; (iv) remained mysteriously inaccessible in pursuance of this sinister objective for the last few days; (v) not provided any reasons or explanation for his contained absence; (vi) is admittedly part of a group that is seeking to destabilize the government and members of which have categorically declared this intention in clear terms to the media in three separate statements made on the evening of July 13th 2020.

All of these lead inescapably and irresistibly to the conclusion that the individual has “voluntarily given up membership” of the Indian National Congress and the provisions of Para 2(1)(a) of the Tenth Schedule are attracted to disqualify him with immediate effect.

Given the ramifications of allowing such actions to go unchecked, the pernicious threat that they pose to democracy and to the party by their hostile actions and to its elected government in the State of Rajasthan, we call upon your good self to take immediate action and disqualify Shri Hemaram Choudhary as MLA of the Rajasthan State Legislative Assembly in terms of Para 2(1)(a) of the Tenth Schedule of the Indian Constitution.

The Supreme Court has characterized such attempts at political defections as a ‘Constitutional Sin’ and every step must be taken to ensure the implementation of not just the letter but the spirit of the Tenth Schedule to eliminate this scourge. 34

Annexures: 1. Notice of the Meeting. 2. Links of the different Statement (1 to 4) in Soft copy/Pen Drive.

Sd/- (Dr. Mahesh Joshi) Petitioner

Dated: July 14, 2020

VERIFICATION: Verified that the contents of paragraphs 1 to 6 of the Petition and content of the annexures are true and correct to the best of my knowledge. No part of it is false and nothing relevant has been concealed, therefore.

Sd/- (Dr. Mahesh Joshi) Petitioner Dated: July 14, 2020

//TRUE TYPED COPY// 35

ANNEXURE P-2

Rajasthan Legislative Assembly Secretariat

From, The Secretary, Rajasthan Legislative Assembly Secretariat – 302005

To, Shri Suresh Modi Member Rajasthan Legislative Assembly Jaipur

Ref. No. 1 (59) Sasha/ Vis/2020/ 16258

Jaipur, dated 14th July, 2020

Subject : Petition No. 06/ 2020 under the provisions of the Article 191 of the Constitution of India read with Tenth Schedule and Rajasthan Assembly Member (Disqualification on the grounds of changing party) Rules, 1989, filed by Dr. Mahesh Joshi, Chief Whip, INC, Rajasthan Legislative Assembly against Shri Suresh Modi

Sir, A Petition under Article 191 of the Constitution of India read with Tenth Schedule has been filed before the Ld. Speaker, Rajasthan Legislative Assembly by Dr. Mahesh Joshi, Chief Whip, INC, Rajasthan Legislative Assembly for the disqualification of Shri Suresh Modi, the Member of Legislative Assembly, from the membership of the constituted area of the Rajasthan Legislative Assembly. The said Petition has been admitted/ registered under the Rajasthan Assembly Member (Disqualification on the grounds of changing party) Rules, 1989.

As per the instructions, the Applicant by sending the above said filed petition and the copies of the provisions to you, it is hereby instructed that in relation to the above said petition, file/ furnish your written submissions in accordance to the Rajasthan Assembly Member (Disqualification on the grounds of changing party) Rules, 1989, before the Ld. Speaker within 03 days.

The above said petition will be listed on 17th July, 2020 at 1 o’clock at noon before the Ld. Speaker at his Room No. 101, Rajasthan Legislative Assembly Bhawan, Jaipur for the perusal/ reply to the petition, any other proceedings which the Ld. Speaker will deem fit and proper.

It is hereby informed to you that in case you fail to furnish/ file the written reply/ submissions, in accordance to the rules, in relation to the above said petition, then the said petition will be heard one sided and the ex parte order will be passed.

The present notice is being sent to you at your permanent and local address apart from the email Id, mobile number (on SMS and WhatsApp), registered with the Secretariat, Legislative Assembly.

Enclosures: Original Petition and the copies of the provisions By order, Sd/- (Pramil Kumar Mathur)

(TRUE TRANSLATED COPY) 37

ANNEXURE P-3

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR S.B. CIVIL WRIT PETITION NO. 7451/2020 1. Prithviraj Meena S/o. Ram Karan Meena 9 Biswa Thodabhim Rajasthan

2. Ved Prakash Solanki, aged about - 44 years, S/o Shri Mata Prasad Solanki, MLA, N-35, Gandhi Nagar, Jaipur I,

3. Suresh Modi Sh. Mohan Lal Modi Maya Bhawan Neem Ka Thana Distt. Sikar

4. Vishvendra Singh Brijendra Singh 18 D, Civil Lines, Jaipur

5. Deependra Singh Late Bharat Singh Vill. Mau The. Shrimadhopur Dist: Sikar Rajasthan

6. Sachin Pilot, aged about - 42 years, S/o Late Shri Rajesh Pilot, R/o, VPO, 11, Civil Line, Jaipur

7. Bhawarlal Sharma S/o, Manak Ram Sharma 46-47, Sardar Shahar House Graenade Marg Pratap Nagar Kathipura Jaipur

8. Gajrah Khatana S/o. Late Suraj Bhan 65, Bhagwati Nagar -I Jaipur

9. Indraj S/o. Umrao Lal Gurjar 578, Ganga Mata Temple Area Pavota Tehsil Kotputli Jaipur

10. Gajendra Singh Shaktawat, S/o Shri Gulab Singh Sherawat, Shaktawat Farm House, Behind Police Station, Bheender, Udaipur, I,

11. Hema Ram Choudhary Moola Ram Choudhary Vill Adarsh Luk Dhauri Mana Rajasthan

12. Ram Niwas Gawriya, aged about - years, S/o Shri Raghu Ram, MLA, R/o. Near Marwar School, Jhalra Road, Kuchaman City, Nagaur, Rajasthan

13. Amar Singh 51 years Sukh Ram Jatav Basti Basai Post - Bansi Pahlad pur The Roopwas Bharatpur

14. Brijender Singh Ola, aged about -51 years, S/o Shri Sisrarn Ola 96, Gourav Nagar, Civil Lines, Jaipur,

15. Murari Lal Meena Sh. Narayan Lal Meena R- 5H/101-102, Indira Gandhi Nagar Jaipur

16. Mukesh Kumar Bhakar Surja Ram Ladun, VPO, Khariya Teh: Didwana Dist: Nagur Rajasthan. 40

17. Rakesh Parekh, aged about - ___ years, S/o Shri Rameshwar Lal Parikh, Vill Miyan, Bhagwan pura, Sarwad, Ajmer

18. Harish Meena, aged about - ____ years, S/o Shri Narayan Meena, MLA, No, 10, Jawahar Nagar, Jaipur- 4

19. Ramesh Chand Meena S/o. Shankar Lal Meena H NO 52, Vill Naya Gaon Post Ranipura Teh : Madrayal Karauli Rajasthan …Petitioners

Versus

1. The Hon'ble Speaker Rajasthan Legislative Assembly Jaipur Rajasthan

2. The Secretary Rajasthan Legislative Assembly Jaipur Rajasthan

3. Mr. C.P. Joshi Hon'ble Speaker Rajasthan Legislative Assembly 49, Civil Lines, Jaipur - 302 006 …Respondents 41

S.B. CIVIL WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA QUESTIONING THE VALIDITY AND CORRECTNESS OF THE NOTICE ISSUED BY RESPONDENT NO. 1 UNDER ARTICLE 191 OF THE CONSTITUTION OF INDIA READ WITH RAJASTHAN VIDHAN SABHA SADASYA (DAL PARIVARTAN KE AADHAR PAR NIRHARTAI NIYAM 1989 / (RAJASTHAN ASSEMBLY MEMBER (DISQUALIFICATION ON THE GROUNDS OF CHANGING PARTY) RULES 1989) BEING IN VIOLATION OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION OF INDIA

To, Hon'ble the Chief justice And his other companion Judges of the Rajasthan High Court at Jaipur

MAY IT PLEASE YOUR HONOUR: The humble petitioner most respectfully submits as under: 1. That the petitioners are citizens of India and are entitled to invoke the extraordinary jurisdiction of this Hon'ble Court by way of this Writ Petition under Article 226 of the Constitution of India.

2. That the petitioners are filing the present writ petition questioning the validity and correctness of the notice issued by Respondent No. 1 under Article 191 of the Constitution of India read with Rajasthan Vidhan Sabha Sadasya (Dal Parivartan Ke Aadhar Par Nirharta) Niyarn 1989 / (Rajasthan Assembly Member (Disqualification on the grounds Of changing party) rules 1989) taking cognizance of motivated Petition/ Complaint filed on behalf of Mr. Mahesh Joshi, the Chief Whip of the Indian national Congress in the Rajasthan 42

legislative assembly. That the brief facts leading to the filing of the present petition are as follows:

3. The Legislative Assembly Election in Rajasthan was held on 7th December 2018 in which Indian National Congress became the single largest party and formed the government under the Chief Ministersip of Mr. Ashok Gehlot. Mr. Sachin Pilot, one of the Petitioners was elected as the Deputy Chief Minister of the state.

4. That the Petitioners faced certain genuine grievances in the manner in which the government was functioning as the voices of the masses were not being heard. Being aggrieved, the Petitioners expressed their grievances that were not tolerated by the Hon’ble Chief Minister.

5. That it is submitted that sensing the brewing discontent, the Chief Minister called for a legislative party meeting on the 13th July without providing any specific agenda and leveling certain baseless allegations against the Petitioners.

6. Subsequently, on 13th July the following notice came to be issued:

Notice

Earlier on 13th July 20 a meeting was called of all members of the congress Legislative Assembly Party at 10.30 AM at the Chief Minister residence at Jaipur. 43

Regrettably, it was noticed that some Member deliberately choose to avoid attending the same despite full knowledge of the event.

However, in view of the exigencies of the emergent political situation prevailing in the State on account of repeated attempts at defections and to discuss and draw out a political strategy to 'address the same, another meeting of the CLP is being called at 10 AM tomorrow i.e. July 14th, 2020 at the Fairmont Hotels & Resorts 2, RIICO, Kukas, Jaipur. You are requested to attend the meeting of the CLP. An failure to participate, without providing valid and adequate reasons in advance in writing to the undersigned, will be deemed to be clear and categorical evidence of your intention to disassociate from the Indian National Congress and its ideology and will invite action as per relevant statute and the Constitution of India.

This Notice is being sent on the Email address provided by the Legislators and registered with the Raj. Assembly along with copies being served on SMS & Whatsapp as well.

Sd/- Mahesh Joshi Chief Whip

7. Additionally, It was learnt that the Chief Minister has ordered an enquiry by the Special Operations Group (Rajasthan Police) in order 44

to investigate the Petitioners which was no more than aploy to threaten the Petitioners and the other MLAs from raising their voice against the inefficiency of the leadership within the party. The Petitioners also were given to understand through material available in public domain that the MLAs were not allowed to move out of their respective houses and were constanty kept under the vigil of the local police.

8. On the same day the Petitioners were given to understand that Sh. Sachin Pilot was removed as the Deputy Chief Minister of the state alongwith state ministers Vishvendra Singh and Ramesh Meena also Petitioners before this Hon’ble Court.

9. To the shock and surprise of the Petitioners, the Indian National Congress through their chief Whip filed a complaint under Para 2 (1) A of the Schedule X of the constitution' of India. A copy of the Complaint filed by the Chief Whip dated 14.07.2020 is annexed herewith and is marked as ANNEXURE P-1.

10. Taking note of the above said complaint, on the very same day, i.e. on 14.07.2020, the Petitioners were issued a notice by the Respondent No.1 seeking an explanation within – “2 days” of the issuance of the said notice. A copy of the impugned notice dated 14.07.2020 is annexed herewith and is marked as ANNEXURE P-2 (Colly).

11. In the meanwhile Sh. Sachin Pilot has issued statements stating that there is no intention of him leaving the congress party and he continues to extend his allegiance to the INC.

12. That aggrieved by the notice so issued dated 14.07.2020 issued by the office of the Respondent No.1 the Petitioners-are filing the present Writ Petition on the following grounds amongst others:-

:: GROUNDS ::

A. BECAUSE the impugned notice dated 14th July 2020 as sought to be issued by the Hon'ble Speaker of the State Legislative Assembly for the State of Rajasthan calling upon the Petitioners to show cause as to why no action under the provisions of Article 191 (2) read with the Tenth Schedule of the Constitution of India should be taken against them, is ex-facie bad in law and liable to be quashed at the threshold.

B. BECAUSE the Complaint dated 14th July 2020 preferred by Dr. Mahesh Joshi in his capacity as the Chief Whip of the Indian National Congress in the Rajasthan Legislative Assembly is on the face of it based upon assumptions and surmises, which have no factual ground to support the alleged apprehensions voiced in the said complaint and therefore also, the present show cause notice dated 14th July 2020 issued by the Hon'ble Speaker of the Rajasthan Legislative Assembly ought to be quashed and set-aside. 46

D. BECAUSE the Complaint dated 14th July 2020 is bereft of a single utterance or any action on part of any of the alleged members/ Petitioners herein to indicate that it is their intention to distance themselves as being members of the Indian National Congress let alone, indicative of their intention to deliberately destabilise the elected government of the Indian National. Congress by indulging in activities blatantly prejudicial to the continuation of the government and/or of acting openly against the interests of the party, i.e., the Indian National Congress.

E. BECAUSE in a democratic set-up, the actions of an elected representative of the people, who merely seeks to voice his disagreement with certain policies or decisions taken by some members of his party, cannot be said to amount to him acting against the interests of the party much less tantamount to indulging in activities prejudicial to the continuation of the government. That by no stretch of imagination can a healthy discourse of the pros and cons of the policies sought to be adopted by the political party, albeit his own political party be said to lead to an inference of the member 47

voluntarily giving up his membership as contemplated under Para (2)(a) of the Tenth Schedule of the Constitution of India.

F. BECAUSE not attending two party meetings scheduled by The Congress Legislative Party cannot tantamount to fall within the purview of Para (2)(a) or (2)(b) of the Tenth Schedule of the Constitution of India so as to render him/them fit for disqualification on the ground of defection. That non-attending of any of the party meetings as also, voicing a difference of opinion outside the House are matters between the Member and his party and have nothing to do so far as the deeming clause in the Tenth Schedule is concerned.

G. BECAUSE even the Show Cause Notice dated 14th July 2020 is contrary to the Rajasthan Legislative Assembly (Disqualification) Rules, in as much as Rule mandates that the Hon'ble Speaker must provide a seven (7) day notice to each Member to answer to the Show Cause Notice before the Hon'ble Speaker considers the Show Cause Notice on its merits. As such, the Show cause Notice dated 14th July 2020 calling upon the Members to file their response on or before the 17th July 2020 is clearly in violation of the mandated Rules and procedure established by the Rajasthan Legislative Assembly and must therefore be quashed and set-aside.

H. BECAUSE it is imperative to note that grave mischief is sought to be achieved by the prejudicial manner in which the Congress Legislative 48

Assembly is seeking to impose sanctions, upon the Petitioners- Members of the House on sheer presumptuous basis in as much as the Complaint is dated 14th July 2020 and the Show Cause Notice is also sought to be issued on the even date of 14th July 2020. That there was no overt action on part of any of the Members on account of which the Hon'ble Speaker could justify calling forth upon the members with the afore-said Show Cause Notice, especially in light of the fact that a similar Complaint, alleging defection on party of its members by the Bahuart Samaj Party Members was filed way back in Sep 2019, nearly 10 months prior and no action has been taken on the same by the Hon'ble Speaker on the said complaint till date. A copy of the complaint filed by BSP member is annexed herewith and is marked as ANNEXURE P-3.

I. BECAUSE given the facts and circumstances appertaining to the prejudicial manner in which the Indian National Congress Legislative Assembly seems to have proceeded against the Petitioners/its Members herein, it is evident that the provisions of the Tenth Schedule of the Constitution arc merely sought to be-used as a guise to impose its majoritarian views upon its Members and to stifle their freedom of speech and fair play in a democratic set-up.

and duly elected by the voters of a particular constituency, is deprived of his membership of the House merely on the whims and fancies of the leaders of his party even though he may not have voluntarily resigned from the party.

K. BECAUSE even if the Member is sought to be 'expelled' from his party in accordance with the procedure established by the Constitution, rules or regulations of the political party, he would continue to be a member of the said political party for all practical purposes, by virtue of the deeming provision under Explanation (a) to Para (2) of the Tenth Schedule of the Constitution of India. A copy of the Vidhan Sabha Sadasya (Dal Parivartan Ke Aadhar Par Nirharta) Niyam 1989 is annexed herewith and is marked as ANNEXURE P-4.

L. BECAUSE the aforesaid contention finds support from a bare reading of the Parliamentary Debates relating to the Constitution (52nd Amendment) Bill, 1985, by which the Tenth Schedule was introduced in the Constitution. It is pertinent to note that in the Draft Bill, besides Clauses (a) and (b) to Para (1) of the Tenth Schedule, Clause (c) had also been included, which reads as follows:

“(c) if he has been expelled from such political party in accordance with the procedure established by the Constitution, rules or regulations of such political party.”

That this sub-clause (c) was subsequently omitted from the final bill which later became the Tenth Schedule. It was dropped after debate in parliament in which the dangerous effects of the inclusion of such a sub-clause were pointed out by many of the members.

M. BECAUSE Clause 2(1)(c) of the Constitution (Fifty Second Amendment) Bill, 1985 which was tabled in the parliament provided that if a member was expelled from a political party, then the said member would be disqualified from the House. This clause was specifically deleted whilst passing the Act. In such circumstances, the intention of the parliament, is amply clear that no disqualification would attach to a member who had been expelled by his/her political party. Since the member is expelled from the political party, no act of his/her can post expulsion constitute an act of voluntary giving up of membership of such political party. It is well settled that when a provision was contained in a Bill or Ordinance- which preceded a legislative enactment, and such provision is omitted from the enactment, the omission must be presumed to be conscious and deliberate and given due weight.

Ordinance (180) while re-enacting the said subsection in the Act, unmistakably reveals the legislature's intendment to exclude the rule of giving an opportunity, to be heard before the exercise the power of removal. The legislative history leaves nothing to doubt that the legislature did not expect the State Government to seek the incumbent's explanation before exercising the power of removal under the said provision. Were in. complete agreement with the HC's view in this behalf"

O. BECAUSE any doubt about the intention of parliament in .deleting clause 2(1) (c) of the Bill is dispelled by the speech of the then law minister AK Sen, who observed that having regard to the consensus arrived at with respect to the controversy that was raised with regard to clause 2(1) (c) which sought to disqualify persons who were expelled by their party for conduct outside the house, it has been decided to bring an amendment deleting the said provision. Speeches made by other eminent parliamentarians also make the position clear. Shri Sharad Dighe had stated that the clause is to be deleted as if a member is to be expelled from a political party in accordance with the procedure for anything done outside the house, it would have created several practical problems and it would have given a handle especially to the bosses of smaller parties. Prof Madhu Dandavate had stated that "the bill must not be a handle in the hands of the party caucus expelling party members arbitrarily for their honest dissent…… there are enough instances in this political life of our country where merely 52

for the expression of political dissent from a leader, people have been expelled...... ”

P. BECAUSE if it was the intention of the legislature to not Include expelled members of a political party within the category of persons who could be clubbed with the category of persons who voluntarily resigned from membership of their parties, the same cannot be imported into the Tenth Schedule by virtue of the judicial pronouncement in the G Vishwanathan's case.

Q. BECAUSE the fact that what was sought to be excluded by the legislature has now been introduced into the Tenth Schedule by virtue of the decision in G Vishwartathan's case was taken due note by the Hon’ble Supreme Court in the case of Amar Singh v. Union of India; (2011) 1 SCC 210 wherein it was concluded that the decision in the case of G. Vishwanathan's case requires another look and thus the following questions were referred to the larger bench:

(a) What is the status in either house of parliament or state legislature of a member who is expelled from the party which set him/her up as a candidate for election?

(b) Will the provisions of Tenth Schedule apply to such a member?

(c) Was the view taken in G. Vishwanathart's case with regard to the status of members in ether house of parliament who had not 53

voluntarily resigned from the party but had been expelled therefrom, I n harmony with the provisions of the Tenth schedule.

(d) In view of the fact that members of the two houses of parliament, who are expelled from membership of parties which had set them up as candidates in the election, are not referred to in the Tenth schedule to the Constitution, was the decision in G. Vishwanathan's case that they must be deemed to continue to belong to the party in view of Explanation (a) to paragraph 2(1) of the Tenth Schedule, a correct interpretation of the said provisions, having regard to the parliamentary debates on the Bill which became the Tenth Schedule.

(e) Can Explanation (a) to paragraph 2 (1) of the Tenth Schedule to the Constitution be extended to include members of the two houses of parliament who are expelled from their parties?

(f) When a member of either House of Parliament is expelled by the party which had set him up as a candidate for election end he either joins another political party or forms his own party, can it be said that he had voluntarily given up his membership of the party in view, of the legal fiction created by the Explanation (a) to paragraph 2 (1) of the Tenth Schedule.

(g) What is the status of an unattached member in either House of Parliament or in the State Legislature? 54

R. BECAUSE Report of the Committee on Electoral Reform's popularly called as the Dinesh Goswami Report 1990 had recommended that the Anti-Defection law in the Tenth Schedule should be changed with respect to the following aspects (i) Disqualification provisions should be made specifically limited to cases of (a) voluntarily giving up of membership of a political party by an elected member and (b) voting or abstention from voting by a member contrary to his party direction or whip only in respect of a motion of vote of confidence or a motion amounting to no-confidence or money bill or motion of vote, of thanks to the President's address.

S. It is so because the object of the Tenth Schedule is disqualification alone and is made applicable to the member in contingencies as laid down under sub-clause (a) and (b) of Para 2 and nothing else.

T. BECAUSE the allegation are baseless and no member of prudent mind, can come to conclusion the Petitioners have Voluntarily given up the membership of the Indian National Congress party.

against the Petitioner in the impugned show cause notice because the intention of Respondent No. 3 is to disqualify the Petitioner from the membership of the house as early as possible and to give extend undue benefits to the Chief Minister.

V. BECAUSE he Petitioners do not expect any justice from .the Hon'ble speaker because he is under the influence of Shri Ashok Gahlot, leader of the Legislative party.

W. BECAUSE the impugned order is without jurisdiction within the ambit of Tenth Schedule & A 191 of the constitution of India. That the Petitioner once again reiterates that neither have they given up the member of the INC nor have they done anything basing on which this could be even imagined what to talk of concluding that they have impliedly or implicitly given up the membership of INC. The allegation leveled in the complaint are imaginary, false and baseless.

X. That other grounds will be urged at the time of hearing.

PRAYER

Therefore, it is most humbly and respectfully prayed before this Hon’ble Court that:

(A) Issue a Writ of Certiorari or Direction/Order in the nature of a Writ of Certiorari to quash and set aside the Show Cause Notice dated 14.07.2020 issued by the Hon’ble Speaker of the Rajasthan Legislative Assembly; 56

(B) Issue a Writ of Mandamus or a Direction/Order in the nature of a Writ of Mandamus declaring/ upholding- the status of the Petitioners as Members of the Rajasthan Legislative Assembly- the House on account of them continuing to be members of the Indian National Congress as per the Explanation (a) to Para(2) of the Tenth Schedule of the Constitution of India;

(C) Issue a Writ of Mandamus or Direction/order in the nature of a Writ of Mandamus declaring that alleged actions of the Petitioners as Members of the Rajasthan Legislative Assembly do not come within the purview of disqualification envisaged under Para (2) of the Tenth Schedule read with Article 191 of the Constitution of India;

(D) Pass any other order deemed fit in the interest of justice and equity"

(Humble Petitioners)

Through Counsel:

S. HARI HARAN / DIVYESH MAHESHWARI (D/452/2007) (R/787/2013) (ADVOCATE) B-20, KRISHNA NAGAR-2, LAL KOTHI, JAIPUR

//TRUE TYPED COPY// 57 ANNEXURE P - 4 (1 of 2) [CW-7451/2020]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Civil Writ Petition No. 7451/2020

Prithviraj Meena S/o. Ram Karan Meena ----Petitioner Versus The Honble Speaker ----Respondent

For Petitioner(s) : Mr. Harish Salve Senior Counsel Mr. Mukul Rohatgi, Senior Counsel Mr. Devadatt Kamat, Senior Counsel with Mr. S. Hariharan and Mr. Divyesh Maheshwari For Respondent(s) : Mr. M.S. Singhvi, Advocate General with Mr. Darsh Pareek, Mr. Siddhanth Jain, Mr. Prateek Kasliwal, and Ms. Supriya Saxena Mr. N.K. Maloo Senior Counsel Mr. Abhay Bhandari Senior Counsel Mr. Siddharth Bapna, Mr. Sarvesh Jain, Mr. Anuj Bhandari, Mr. Ajeet Maloo. Dr. Abhishek Manu Singhvi, for respondent No.3

HON'BLE MR. JUSTICE SATISH KUMAR SHARMA

Order

16/07/2020

Heard.

Learned Senior Counsel Mr. Harish Salve appearing on behalf of the petitioners wants to file an application for amendment in the present petition to challenge the constitutional validity of some provisions and accordingly to the effect that the same should be heard by the Division Bench of this court.

Learned Senior Counsel Dr. Abhishek Manu Singhvi, Mr. M.S.

Singhvi and Mr. Abhay Bhandari learned Advocate General

(Downloaded on 16/07/2020 at 06:23:00 PM) 58

(2 of 2) [CW-7451/2020]

appearing on behalf of respondents have vehemently opposed the

petition with the submissions that the writ petition is not

maintainable at all and deserves to be dismissed at the very

threshold.

Without expressing any opinion on the contentions put forth

by both the sides, let the petition be listed on filing of the

application for amendment of the writ petition so that appropriate

consideration may be made on that count.

It is further directed that a copy of the intended application

be provided to learned counsel appearing on behalf of respondents

before filing the same.

(SATISH KUMAR SHARMA),J

ARUN SHARMA /1

(Downloaded on 16/07/2020 at 06:23:00 PM)

ANNEXURE P- 6

AMENDED WRIT PETITION

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B. CIVIL WRIT PETITION NO. 7451/2020

1. Prithviraj Meena S/o. Ram Karan Meena 9 Biswa Thodabhim Rajasthan

2. Ved Prakash Solanki, aged about - 44 years, S/o Shri Mata Prasad Solanki, MLA, N-35, Gandhi Nagar, Jaipur I,

3. Suresh Modi Sh. Mohan Lal Modi Maya Bhawan Neem Ka Thana Distt. Sikar

4. Vishvendra Singh Brijendra Singh 18 D, Civil Lines, Jaipur

5. Deependra Singh Late Bharat Singh Vill. Mau The. Shrimadhopur Dist: Sikar 61

Rajasthan

6. Sachin Pilot, aged about - 42 years, S/o Late Shri Rajesh Pilot, R/o, VPO, 11, Civil Line, Jaipur

7. Bhawarlal Sharma S/o, Manak Ram Sharma 46-47, Sardar Shahar House Graenade Marg Pratap Nagar Kathipura Jaipur

8. Gajrah Khatana S/o. Late Suraj Bhan 65, Bhagwati Nagar -I Jaipur

9. Indraj S/o. Umrao Lal Gurjar 578, Ganga Mata Temple Area Pavota Tehsil Kotputli Jaipur

10. Gajendra Singh Shaktawat, S/o Shri Gulab Singh Sherawat, Shaktawat Farm House, Behind Police Station, Bheender, Udaipur, I,

11. Hema Ram Choudhary Moola Ram Choudhary Vill Adarsh Luk Dhauri Mana Rajasthan 62

12. Ram Niwas Gawriya, aged about - years, S/o Shri Raghu Ram, MLA, R/o. Near Marwar School, Jhalra Road, Kuchaman City, Nagaur, Rajasthan

13. Amar Singh 51 years Sukh Ram Jatav Basti Basai Post - Bansi Pahlad pur The Roopwas Bharatpur

14. Brijender Singh Ola, aged about -51 years, S/o Shri Sisrarn Ola 96, Gourav Nagar, Civil Lines, Jaipur,

15. Murari Lal Meena Sh. Narayan Lal Meena R- 5H/101-102, Indira Gandhi Nagar Jaipur

16. Mukesh Kumar Bhakar Surja Ram Ladun, VPO, Khariya Teh: Didwana Dist: Nagur 63

Rajasthan. 17. Rakesh Parekh, aged about - ___ years, S/o Shri Rameshwar Lal Parikh, Vill Miyan, Bhagwan pura, Sarwad, Ajmer

18. Harish Meena, aged about - ____ years, S/o Shri Narayan Meena, MLA, No, 10, Jawahar Nagar, Jaipur- 4

19. Ramesh Chand Meena S/o. Shankar Lal Meena H NO 52, Vill Naya Gaon Post Ranipura Teh : Madrayal Karauli Rajasthan …Petitioners

Versus

1. The Hon'ble Speaker Rajasthan Legislative Assembly Jaipur Rajasthan

2. The Secretary Rajasthan Legislative Assembly Jaipur Rajasthan

3. Mr. C.P. Joshi Hon'ble Speaker Rajasthan Legislative Assembly 49, Civil Lines, 64

Jaipur - 302 006 …Respondents D.B. CIVIL WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA QUESTIONING THE VALIDITY AND CORRECTNESS OF THE NOTICE ISSUED BY RESPONDENT NO. 1 UNDER ARTICLE 191 OF THE CONSTITUTION OF INDIA READ WITH RAJASTHAN VIDHAN SABHA SADASYA (DAL PARIVARTAN KE AADHAR PAR NIRHARTAI NIYAM 1989 / (RAJASTHAN ASSEMBLY MEMBER (DISQUALIFICATION ON THE GROUNDS OF CHANGING PARTY) RULES 1989) BEING IN VIOLATION OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION OF INDIA CHALLENGING THE CONSTITUTIONAL VALIDITY OF CLAUSE 2(1)(A) OF THE TENTH SCHEDULE REWARD WITH ARTICLE 191 OF THE CONSTITUTION OF INDIA

To, Hon'ble the Chief justice And his other companion Judges of the Rajasthan High Court at Jaipur

2. That the petitioners are filing the present writ petition questioning the validity and correctness of the notice issued by Respondent No. 1 65

under Article 191 of the Constitution of India read with Rajasthan Vidhan Sabha Sadasya (Dal Parivartan Ke Aadhar Par Nirharta) Niyarn 1989 / (Rajasthan Assembly Member (Disqualification on the grounds Of changing party) rules 1989) taking cognizance of motivated Petition/ Complaint filed on behalf of Mr. Mahesh Joshi, the Chief Whip of the Indian national Congress in the Rajasthan legislative assembly. That the brief facts leading to the filing of the present petition are as follows:

6. Subsequently, on 13th July the following notice came to be issued: Notice

Earlier on 13th July 20 a meeting was called of all members of the congress Legislative Assembly Party at 10.30 AM at the Chief Minister residence at Jaipur.

Regrettably, it was noticed that some Member deliberately choose to avoid attending the same despite full knowledge of the event.

This Notice is being sent on the Email address provided by the Legislators and registered with the Raj. Assembly along with copies being served on SMS & Whatsapp as well.

Sd/- Mahesh Joshi Chief Whip

7. Additionally, It was learnt that the Chief Minister has ordered an enquiry by the Special Operations Group (Rajasthan Police) in order to investigate the Petitioners which was no more than aploy to threaten the Petitioners and the other MLAs from raising their voice 67

against the inefficiency of the leadership within the party. The Petitioners also were given to understand through material available in public domain that the MLAs were not allowed to move out of their respective houses and were constanty kept under the vigil of the local police.

11. In the meanwhile Sh. Sachin Pilot has issued statements stating that there is no intention of him leaving the congress party and he continues to extend his allegiance to the INC. 12. That aggrieved by the notice so issued dated 14.07.2020 issued by the office of the Respondent No.1 the Petitioners-are filing the present Writ Petition on the following grounds amongst others:-

:: GROUNDS ::

C. BECAUSE none of the Petitioners herein have either by express conduct or implied conduct, indicated to the members of their constituencies and/or the public at large of their intention to leave or voluntary give up their membership to the Indian National Congress. D. BECAUSE the Complaint dated 14th July 2020 is bereft of a single utterance or any action on part of any of the alleged members/ Petitioners herein to indicate that it is their intention to distance themselves as being members of the Indian National Congress let alone, indicative of their intention to deliberately destabilise the elected government of the Indian National. Congress by indulging in activities blatantly prejudicial to the continuation of the government and/or of acting openly against the interests of the party, i.e., the Indian National Congress.

H. BECAUSE it is imperative to note that grave mischief is sought to be achieved by the prejudicial manner in which the Congress Legislative Assembly is seeking to impose sanctions, upon the Petitioners- Members of the House on sheer presumptuous basis in as much as the Complaint is dated 14th July 2020 and the Show Cause Notice is also 71

sought to be issued on the even date of 14th July 2020. That there was no overt action on part of any of the Members on account of which the Hon'ble Speaker could justify calling forth upon the members with the afore-said Show Cause Notice, especially in light of the fact that a similar Complaint, alleging defection on party of its members by the Bahuart Samaj Party Members was filed way back in Sep 2019, nearly 10 months prior and no action has been taken on the same by the Hon'ble Speaker on the said complaint till date. A copy of the complaint filed by BSP member is annexed herewith and is marked as ANNEXURE P-3.

J. BECAUSE the reliance by the Indian National Congress upon the law as propounded in G. Viswartathan v. T.N. Legislate Assembly, (1996) 2 SCC 353 has dangerous consequences on that if a Member, properly and duly elected by the voters of a particular constituency, is deprived of his membership of the House merely on the whims and fancies of the leaders of his party even though he may not have voluntarily resigned from the party. 72

“(c) if he has been expelled from such political party in accordance with the procedure established by the Constitution, rules or regulations of such political party.”

N. Reliance is placed on Dr. Rashal Yadav v. State of Bihar & Ors. (1994) 5 SCC 267 wherein the following was observed the HC has, having regard to the legislative history, concluded that the deliberate omission of the proviso that existed in sub-sect.ior (7) of S.10 of the Ordinance (180) while re-enacting the said subsection in the Act, unmistakably reveals the legislature's intendment to exclude the rule of giving an opportunity, to be heard before the exercise the power of removal. The legislative history leaves nothing to doubt that the legislature did not expect the State Government to seek the incumbent's explanation before exercising the power of removal under 74

the said provision. Were in. complete agreement with the HC's view in this behalf"

imported into the Tenth Schedule by virtue of the judicial pronouncement in the G Vishwanathan's case.

(a) What is the status in either house of parliament or state legislature of a member who is expelled from the party which set him/her up as a candidate for election?

(b) Will the provisions of Tenth Schedule apply to such a member?

(c) Was the view taken in G. Vishwanathart's case with regard to the status of members in ether house of parliament who had not voluntarily resigned from the party but had been expelled therefrom, I n harmony with the provisions of the Tenth schedule.

(d) In view of the fact that members of the two houses of parliament, who are expelled from membership of parties which had set them up as candidates in the election, are not referred to 76

in the Tenth schedule to the Constitution, was the decision in G. Vishwanathan's case that they must be deemed to continue to belong to the party in view of Explanation (a) to paragraph 2(1) of the Tenth Schedule, a correct interpretation of the said provisions, having regard to the parliamentary debates on the Bill which became the Tenth Schedule.

(e) Can Explanation (a) to paragraph 2 (1) of the Tenth Schedule to the Constitution be extended to include members of the two houses of parliament who are expelled from their parties?

(g) What is the status of an unattached member in either House of Parliament or in the State Legislature?

be made specifically limited to cases of (a) voluntarily giving up of membership of a political party by an elected member and (b) voting or abstention from voting by a member contrary to his party direction or whip only in respect of a motion of vote of confidence or a motion amounting to no-confidence or money bill or motion of vote, of thanks to the President's address.

T. BECAUSE the allegation are baseless and no member of prudent mind, can come to conclusion the Petitioners have Voluntarily given up the membership of the Indian National Congress party.

U. That the impugned notice is based on mala fide intention and considerations of the of Respondent No. 3, The Petitioners apprehend and have reasons to believe that the speaker would disqualify them under the undue pressure of Chief Minister on 17.07.2020 without following the procedure of law and without giving them any reasonable opportunity of hearing and refute the allegation leveled against the Petitioner in the impugned show cause notice because the intention of Respondent No. 3 is to disqualify the Petitioner from the membership of the house as early as possible and to give extend undue benefits to the Chief Minister. 78

V. BECAUSE he Petitioners do not expect any justice from .the Hon'ble speaker because he is under the influence of Shri Ashok Gahlot, leader of the Legislative party. W. BECAUSE the impugned order is without jurisdiction within the ambit of Tenth Schedule & A 191 of the constitution of India. That the Petitioner once again reiterates that neither have they given up the member of the INC nor have they done anything basing on which this could be even imagined what to talk of concluding that they have impliedly or implicitly given up the membership of INC. The allegation leveled in the complaint are imaginary, false and baseless. Freedom of speech and expression is not only an integral part of Part III of the Constitution of India but is a part of the basic structure of the Constitution of India. Free expression is a part of one of the very basic human rights, and is a facet of the right to a conscience. The essence of the trilogy of Article 14, 19 and 21 – includes the right of a citizen to free expression – Article 19(1)(a) is a manifestation of the right. The right lies in the core of the basic structure of the constitution.

X. It is submitted that all statutory provisions as well as constitutional provisions must withstand the scrutiny of the constitutional provisions which are forming part of the basic structure of the Constitution.

Y. It is submitted that clause 2[1][a] which incorporates "voluntary giving up of membership of a political party" cannot be so widely 79

construed that the very same fundamental freedom of speech and expression of a Member of the House is jeopardised.

Z. It is respectfully submitted that mere expression of dissatisfaction or even disillusionment against the party leadership cannot be treated to be conduct falling within the clause 2[1][a] of the 10th Schedule of the Constitution of India.

AA. It is submitted that even if expression of views and opinions, howsoever strongly worded, are treated to be a part of clause 2[1][a], the said clause would not stand the scrutiny and will have to be declared ultra vires the basic structure of the Constitution of India.

BB. It is respectfully submitted that the very foundational fact based .upon which the Speaker has issued Notice under 10th Schedule are the facts which, if not constitutionally construed in the aforesaid context, would render the provision itself unconstitutional.

CC. It is submitted that this question can neither be raised before the Speaker nor be adjudicated by the Speaker. The petitioner reserved liberty to challenge the constitutional validity of clause 2[1][a] hereinafter with the leave of the Hon'ble Court.

DD. That other grounds will be urged at the time of hearing.

PRAYER

Therefore, it is most humbly and respectfully prayed before this Hon’ble Court that:

(A) Issue a Writ of Mandamus or an appropriate writ declaring clause 2[1][a] to be violative of the basic structure of the Constitution of India and thus void.

(B) Issue a Writ of Certiorari or Direction/Order in the nature of a Writ of Certiorari to quash and set aside the Show Cause Notice dated 14.07.2020 issued by the Hon’ble Speaker of the Rajasthan Legislative Assembly;

(C) Issue a Writ of Mandamus or a Direction/Order in the nature of a Writ of Mandamus declaring/ upholding the status of the Petitioners as Members of the Rajasthan Legislative Assembly- the House on account of them continuing to be members of the Indian National Congress as per the Explanation (a) to Para(2) of the Tenth Schedule of the Constitution of India;

the purview of disqualification envisaged under Para (2) of the Tenth Schedule read with Article 191 of the Constitution of India;

(E) Issue a Writ, Order or Direction declaring Clause 2(l)(a) of the Tenth Schedule read with Article 191 of the Constitution of India ultra vires,

(F) Pass any other order deemed fit in the interest of justice and equity"

(Humble Petitioners)

Through Counsel:

S. HARI HARAN / DIVYESH MAHESHWARI (D/452/2007) (R/787/2013) (ADVOCATE) B-20, KRISHNA NAGAR-2, LAL KOTHI, JAIPUR +91-8233617617, ([email protected])

Notes: 1. No such D.B. Civil Writ Petition has earlier been filed in the matter.

2. That this is D.B. Civil Writ Petition where the vires of the constitution are under challenge.

3. PF, Notices and extra set would be filed as per direction of the court.

4. It has been typed by the private typist

5. Pie papers are not readily available, typed on stout papers.

Counsel for the Petitioners

//TRUE TYPED COPY// 82 ANNEXURE P-7

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

D.B. Civil Writ Petition No. 7451/2020

Prithviraj Meena S/o. Ram Karan Meena ----Petitioner Versus The Honble Speaker ----Respondent

For Petitioner(s) : Mr. Harish Salve, Senior Advocate assisted by Mr. Divyesh Maheshwari Mr. Mukul Rohatgi, Senior Advocate assisted by Mr. S. Hariharan For Respondent : Dr. Abhishek Singhvi, Senior Advocate Nos.1 & 2 assisted by Mr. Aavishkar Singhvi, Mr. Amit Bhandari and Mr. Harendar Neel Mr. M.S. Singhvi, Advocate General assisted by Mr. Darsh Pareek and Mr. Siddhant Jain For Respondent No.3 : Mr. Prateek Kasliwal with Ms. Supriya Saxena & Mr. Rohit Jain For Applicant(s) : Mr. A.K. Bhandari, Senior Advocate Mr. N.K. Maloo, Senior Advocate Mr. Devadatt Kamat, Senior Advocate assisted by Mr. Siddharth Bapna, Mr. Anuj Bhandari, Mr. Vaibhav Bhargava, Mr. Jitendra Mishra Mr. Atul Bhardwaj and Mr. Sarvesh Jain

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE PRAKASH GUPTA

Order

17/07/2020

D.B. Civil Misc. Application No. 3/2020:-

Mr. A.K. Bhandari, learned Senior Counsel assisted by Mr.

Siddharth Bapna appearing for Dr. Mahesh Joshi has filed an application for impleadment.

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(2 of 3) [CW-7451/2020]

Dr. Abhishek Singhvi, learned Senior Counsel assisted by Mr.

Aavishkar Singhvi and Mr. M.S. Singhvi, learned Advocate General assisted by Mr. Darsh Pareek appearing for the respondents have no objection to such impleadment.

Mr. Harish Salve, learned Senior Counsel assisted by Mr.

Divyesh Maheshwari appearing for the petitioner has also no objection to such an impleadment.

Accordingly, the application is allowed and applicant Dr.

Mahesh Joshi is impleaded as respondent No.4 in the writ petition.

Necessary corrections be made in the pleadings in course of the day.

Mr. A.K. Bhandari, learned Senior Counsel seeks one day time to file his reply on the merits of the writ-application, copies be served on the Counsel for the petitioners by tomorrow.

D.B.Civil Writ Petition No.7451/2020:-

Heard Mr. Harish Salve and Mr. Mukul Rohatgi, learned

Senior Counsels for the petitioner, Dr. Abhishek Singhvi, learned

Senior Counsel on behalf of Speaker of the Rajasthan Legislative

Assembly.

Today hearing remains inconclusive. Dr. Abhishek Singhvi, learned Senior Counsel submits that he shall instruct his clients to submit another letter, similar to the letter addressed to this Court on behalf of the Hon’ble Speaker dated 16.07.2020, and further submits that notices issued to the petitioners requiring their response to be filed before the Hon’ble Speaker on or before 17th

July, 2020 at 1.00 P.M. shall stand extended on account of the continuance of the hearing of the matter before this Court till 21st of July, 2020 at 5.30 P.M. and subject to any direction that may be passed by the Court in this matter.

(Downloaded on 17/07/2020 at 08:23:14 PM) 84

(3 of 3) [CW-7451/2020]

Accordingly, the matter stands adjourned to

20.07.2020 and the Bench shall commence hearing at 10.00 A.M.

Matter remains heard in part.

(PRAKASH GUPTA),J (INDRAJIT MAHANTY),CJ

KAMLESH KUMAR-N.Gandhi /

(Downloaded on 17/07/2020 at 08:23:14 PM)

ANNEXURE – P8P9 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH, JAIPUR

D.B. Civil Writ Petition No.7451/2020

IN THE MATTER OF

PRITHVIRAJ MEENA&ORS. … PETITIONERS

VERSUS

HON’BLE SPEAKER, RAJASTHAN LEGISLATIVE ASSEMBLY & ORS … RESPONDENTS

WRITTEN SUBMISSIONS OF MR. DEVADATT KAMAT SR. ADVOCATE ON BEHALF OF RESPONDENT NO. 4

1. At the outset, it is respectfully submitted that the instant Writ Petition is completely non maintainable and ought to dismissed in limine as (a) The writ petition and the prayers contained therein militate against the express provisions of Para 6(1) and (2) of the Tenth Schedule of the Constitution; (b) The Writ Petition is in the nature of a qua timet action which is totally barred per the judgement of the Constitution Bench of the Supreme Court in Kihoto; (c) The challenge to the constitutionality of para 2(1)(a) cannot be raised (after it has been decided by the Supreme Court) and even otherwise under Article 226;.

RE: PRAYERS (C) AND (D) WHICH SEEK A DECLARATION OF STATUS AS MEMBERS OF INC CANNOT BE GRANTED

2. It is submitted that the Prayers (C) and (D) [page 22 of amemded WP] are in the nature of declarations of fact regarding the status of the Petitioners as members of INC. No such declaration on fact is permissible in exercise of jurisdiction under Article 226. No declaration on fact can be given in a writ Petition that the Petitioners are members of the Indian National Congress (INC) and further that they have not ‘voluntarily given up membership’ of the INC.

3. Even other wise, it is relevant to note that such prayers directly militate against Para 6(1) of the Tenth Schedule. Para 6(1) is reproduced under for the convenience and reads as follows

“6. Decision on questions as to disqualification on ground of defection. —(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:

Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. “

4. It is submitted that it is the Speaker/Chairman of the House alone who is the exclusive adjudicator of the question whether a Member has incurred disqualification under the Tenth Schedule. Thus, Prayers (C) and (D) which seek a declaration from the Hon’ble High Court are totally non maintainable.

5. In this regard the observation of the Hon’ble Supreme Court in paragraph 103 of the judgment ShrimanthBalasahebPatil v. Karnataka Legislative Assembly, (2020) 2 SCC 595 being relevant is reproduced under for the convenience of this Hon’ble Court

“103. Article 192 of the Constitution provides that the Governor will be the authority for determination of disqualification on the grounds as contained under Article 191(1) of the Constitution. In contrast, the decision as to disqualification on the ground as contained in Article 191(2) of the Constitution vests exclusively in the Speaker in terms of Para 6 of the Tenth Schedule. There is no dispute that provisions under Tenth Schedule are relatable to disqualification as provided under Articles 102(2) and 191(2) of the Constitution.”

RE: PRAYER (B) SEEKING QUASHING OF NOTICE DATED 14.07.2020 ISSUED UNDER RULE 7 OF THE RAJASTHAN LEGISLATIVE ASSEMBLY (DISQUALIFICATION) RULES ALSO NOT MAINTAINABLE

6. It is respectfully submitted that Prayer (B) seeks to quash the notice dated 14.07.2020 issued by the Hon’ble Speaker of the Legislative 87

Assembly. It is further submitted that the challenge to the notice is untenable for several reasons. 7. Firstly, the notice is only for the purposes of eliciting a response from the Petitioners on the allegations contained in the disqualification petition and is not by any stretch of imagination the final decision of the Speaker.

8. Secondly, the notice in question “ is a proceeding in the house” under para 6(2) of the Tenth Schedule which reads as follows

“6(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.

9. The stage anterior to the decision of the Speaker under Para 6(1) are ‘proceedings’ which commence on the receipt of the disqualification petition and conclude with the pronouncement of the final decision. Though the final decision of the Speaker is judicially reviewable, judicial review cannot be invoked prior to the decision as the ‘proceedings’ are proceedings in the Legislature of the State within the meaning of Article 212. As a result, the notice dated 14.07.2020 cannot be called in question. Article 212 of the Constitution clearly bars such a challenge and is reproduced under for the convenience of this Hon’ble Court and reads as follows

“212.Courts not to inquire into proceedings of the Legislature (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.”

10. The issue as to whether the court would interfere in the proceedings of the House is by now well settled. In this regard, attention of this Hon’ble Court is invited to the judgment of the Seven Judge Bench decision of the Hon’ble Supreme Court in Pandit M.S.M. Sharma 88

v. Sri Krishna Sinha, 1959 Supp (1) SCR 806, wherein it was held as follows “10. It now remains to consider the other subsidiary questions raised on behalf of the petitioner. It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this Court, the petitioner has not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings. It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution vide Janardan Reddy v. State of Hyderabad [(1951) SCR 344] .

Also See of the Hon’ble Madras High Court in C. Subramanian v. Speaker Madras Legislative Assembly reported in AIR 1969 Madras 10 (Page 36 of the Compilation @41)

11. Thirdly, it is submitted that when the final order of the Speaker itself is subject to limited judicial review, the stages prior to the decision cannot be interfered with (including notices etc issued by the Speaker). Such a qua timet action has been held to be impermissible as per the Constitution Bench judgment in Kihoto Hollohan vs Zachillu,(1992) Supp(2) SCC 651. In this regard paragraphs 109 and 110 being relevant read as follows

“109. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Paragraph 6, the scope of judicial review under Articles 136, and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.

110. In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quiatimet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.”

12. It is well settled that a Court ought not to interfere at the notice stage as the person notified has an opportunity to go to the authority concerned and put forth his case. In this regard the judgment of the Hon’ble Supreme Court in Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440

“5 [Ed.: Para 5 corrected vide Corrigendum No. F.3/Ed.B.J./40/2004 dated 2-4-2004] . This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is 90

a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted.

13. Similarly, in Indo Asahi Glass Co. Ltd. v. ITO, (2002) 10 SCC 444, the Hon’ble Supreme Court held as under “3. Instead of filing a reply to the show-cause notice, the appellants chose to file a writ petition. The Single Judge dismissed the writ petition on the ground that alternative remedy was available to the appellants. In appeal, the Division Bench took the same view. Hence, this appeal by special leave.

5. This and the other facts cannot be taken up for consideration by this Court for the first time. In our opinion, the High Court was right in coming to the conclusion that it is appropriate for the appellants to file a reply to the show-cause notice and take whatever defence is open to them.”

Re: NO REASONS ARE REQUIRED TO BE STATED IN THE NOTICE DATED 14.07.2020 ISSUED BY THE SPEAKER

14. It is respectfully submitted that the contention of the Petitioners that reasons have to be recorded even in a notice seeking response on a disqualification petition and in the absence of such reasons being recorded in the notice, the notice suffers from infirmity is completely untenable. Such an argument is totally perverse to say the least. The Rajasthan Legislative Assembly (Disqualification) Rules (particularly Rule 7 there of) do not lay down any such requirement.

None of the Disqualification Rules framed by any Legislative Assemblies in the Country or Parliament require reasons to be recorded in the Notice issued by the Speaker

15. In fact, there is no rule in the entire country in any of the State Legislative Assemblies or in Parliament which requires reasons to be stated when the speaker asks for comments on the Disqualification petition. There is not a single case of the Hon’ble Supreme Court or of any other Court in the last 45 years of Tenth Schedule where such a requirement has been mandated. 91

16. It is submitted that if the Speaker has abided and followed the Rules scrupulously under the Tenth Schedule, then it cannot be said that the Speaker ought to have gone beyond the Rules and recorded reasons as well. It is again submitted that there are no provisions under the Rajasthan Legislative Assembly (Disqualification) Rules, that the Speaker ought to assign reasons in the notice issued on a disqualification petition.

17. These Rules have been framed under Para 8 of the Tenth Schedule which reads as follows

“8. Rules. —(1) Subject to the provisions of sub- paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for— (d) the procedure for deciding any question referred to in sub- paragraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. (2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect. (3) The Chairman or the Speaker of a House may, without prejudice to the provisions of article 105 or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any wilful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.”

18. It is submitted that Rule 7 of the Rajasthan Legislative Assembly (Disqualification) Rules, stipulates that the only condition required to be satisfied by the Speaker is that the disqualification petition filed is in conformity with Rule 6 and nothing more is needed at that stage.

RE: THE DISQUALIFICATIONS PETITIONS FILED MAKE OUT A PRIMA FACIE CASE OF VOLUNTARIY GIVNG UP MEMBERSHIP OF THE PARTY UNDE PARA 2(1)(A)

19. It is respectfully submitted that the disqualification petitions make out a prima facie and ex facie case of para 2(1) (a) of the Tenth Schedule. The actions complained against the Petitioners include interalia (i) Attempts being made to topple duly elected INC Govt (page 31 of Amended WP) (ii) Non attendance at CLP meetings despite notice on 13.07.20 and 14.07.20(page 31 of Amended WP) (iii) Video Statements to media houses interalia (a) calling for a floor test against their own Government (b) that Congress has cheated people of Rajasthan (page 33 of Amended WP) (iv) Absenting from the State in a group for several days and being incommunicado and staying in Manesar ( Haryana) which is BJP ruled State. (page 33 of Amended WP)

Note : Copies of all disqualification petitions were handed over to this Hon’ble Court by the counsel for Respondent No.4 at the time of hearing on 20.07.2020

20. In the Counter Affidavit filed by Respondent No 4 before this Hon’ble Court, the following facts have been asserted

(a) The Petitioners are acting totally in concert with the BJP and have left the State of Rajasthan and have gone away for nearly 10 days.

(b) These Petitioners have lodged themselves in hotel/resort in Manesar in Haryana which is a BJP ruled State. It is also relevant to note that Lemon Tree Resort, where some of the Petitioners were residing had been turned into a Covid Quarantine centre by the BJP Govt of Haryana to keep them insulated.

(c)Despite repeated requests from the top leadership at the Centre and the State of the INC, the Petitioners have not returned to their parent State Rajasthan or have even met the leadership of the INC either at Rajasthan or at Delhi.

(d) Further, there are serious attempts being made by these Petitioners to offer allurements and bribes to members of the INC to switch support to the BJP.

(e)There are allegedl audio conversations of the Petitioners and senior functionaries of the BJP, which have been aired by regional and national media channels and which are in the public domain which demonstrate the Petitioners in concert with the members of the BJP have been trying to negotiate monetary deals in return for their alleged support to the BJP. It is most relevant to state here that in this regard FIR Nos 48/2020 and 49/2020 both dated 17.07.2020 have been registered at PS Special Operation’s Group (SOG) Jaipur under Sections 124-A and 120-B of the Indian Penal Code, 1860 wherein audio conversations between conspirators has been quoted.

21. It is respectfully submitted that the aforesaid is the grossest form of defection under para 2(1) (a) of the Xth Schedule. It is submitted that given the categorical assertions of fact and the evidence, the Speaker will eventually decide whether a case under Para 2(1)(a) is made out or not. It is submitted that to interdict the Speaker at this stage would be to efface the very purpose and intent of the Tenth Schedule.

22. It is respectfully submitted that in identical circumstances the Hon’ble Supreme Court in Shrimanth Balasaheb’s case (2020) 2 SCC 595 upheld the defection order of the Speaker. The relevant portions of the Speaker’s order (handed over in a separate compilation) which talks about non presence at CLP meets is at pages 32, 36, 63, 70 of the compilation . These facts adjudicated by the Speaker have been upheld by the Hon’ble Supreme Court in the following paragraphs of the judgment

“121. There is no gainsaying that the scope of judicial review is limited to only grounds elaborated under KihotoHollohan case [KihotoHollohan v. Zachillhu, 1992 Supp (2) SCC 651] . In this regard, the petitioners have not been able to establish any illegality in the orders passed by the Speaker. The Speaker, in our view, had concluded based on material and evidence that the members have voluntarily given up their membership of the party, thereby accruing 94

disqualification in terms of the Tenth Schedule, which facts cannot be reviewed and evaluated by this Court in these writ petitions. So, we have to accept the orders of the Speaker to the extent of disqualification.

174. The Speaker in the impugned order has taken note of the surrounding circumstances, including the conduct of the petitioners from February 2019 onwards. It ought to be noted that sufficient opportunity of hearing was accorded to the petitioners herein who had also filed their responses. It ought to be noted that, vide notice dated 16-1-2019, a meeting of the INC legislative party was called for 18-1-2019. The notice stated that the members must compulsorily attend the meeting otherwise action would be taken against them under the Tenth Schedule. The petitioners did not attend the party meeting on 18-1-2019. Admittedly, the petitioners also refrained from attending the subsequent general body meeting dated 6-2-2019 as well as Assembly Sessions from 6- 2-2019. The resignations were submitted by the petitioners nearly four months after the disqualification petition had already been filed.

176. As observed earlier, the Speaker had sufficient material before him to pass the order of disqualification. There exist no infirmities in the order, which calls for our indulgence and interference.”

23. Further more, the definition of ‘voluntarily giving up membership of the party’must be given wide connotation and this in regard attention of this Hon’ble Court is invited to the judgment of the Hon’ble Supreme Court in Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641, wherein it was held that “11……are not synonymous with “resignation” and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”

24. In the case of disqualification of Shri Sharad Yadav, the Hon’ble Chairman of the Rajya Sabha, in the disqualification order dated 04.12.2017 (Page 1-24 of the compilation) took categorical note of the fact that Shri Sharad Yadav, Respondent therein, had not attended the party meeting and further had publicly criticized the stand of the party and that by such conduct amount Shri Yadav had‘voluntarily giving up membership’ of the JD(S). In this regard 95

attention is invited to paragraph 5 of the order which reads as follows “5….The Petitioner had alleged that the Respondent did not attend the meeting of the National Executive and National Council held on 19th of August, 2017, to which he was invited and where he could have voiced his concerns, but chose to instead hold a parallel meeting attended mainly by RJD workers. The Petitioner had held that Mahagathbandhan was merely political alliance formed on a common minimum programme to fight elections for the Legislative Assembly in Bihar and there can never be any compulsion on the constituents of a coalition to remain welded despite fundamental differences. ….”

25. In paragraph 18 of the order, the Hon’ble Vice President holds as under “18…Here, I would like to mention that a political party which is an essential part of the democratic set up, owrks through collective decisions. Though one might have differences with the decision of the party, he ultimately to follow the collective decision of the party. He has every right to air his view in the meetings and forums of the party before a decision is taken and may be even after that also. But if a member of any political party starts criticizing the decisions of his own party publicly, after the decision has been taken, and goes to the extent of attending and addressing rallies of the rival political parties, it will fall under anti-party activity and in case the person concerned is a Member of the State Legislature or Parliament, this amount to voluntarily giving up the membership of the party, thus incurring disqualification under the Tenth Schedule. In my considered opinion, a Member gets elected as a candidate of a political because of the policies and manifestoes of the party and if the member criticizes his party publicly, he will be deemed to have given up membership of the political party voluntarily.”

26. The Hon’bleVice President in the order also relies upon the report on the Committee of Privileges which explained the term voluntarily giving up membership of the political party to mean the following “The intention of the law makers is quite clear that it is not only by the over act of tendering his resignation but also by this conduct that a member may give up the membership of his political party. The Committee are of the view that if a member by is conduct makes its manifestly clear that he is not bound by the party discipline and is prepared even to wreck it by his conduct, he should be prepared to pray the price of losing his eat and seeking re- election”

27. It is further submitted that the Hon’ble Speaker has vast jurisdiction to decide whether a person stands disqualified under the Tenth Schedule and may arrive at such a conclusion by taking the aid of contemporaneous evidence. In this regard reliance is placed on the judgment of the Hon’ble Apex Court in Jagjit Singh v. State of Haryana, (2006) 11 SCC 1 ,wherein it has been held that

“44. Undoubtedly, the proceedings before the Speaker which is also a tribunal albeit of a different nature have to be conducted in a fair manner and by complying with the principles of natural justice. However, the principles of natural justice cannot be placed in a straitjacket. These are flexible rules. Their applicability is determined on the facts of each case. Here, we are concerned with a case where the petitioners had declined to avail of the opportunity to watch the recording on the compact disc. They had taken vague pleas in their replies. Even in respect of signatures on CLP register their reply was utterly vague. It was not their case that the said proceedings had been forged. The Speaker, in law, was the only authority to decide whether the petitioners incurred or not, disqualification under the Tenth Schedule to the Constitution in his capacity as Speaker. He had obviously opportunity to see the petitioners and hear them and that is what has been stated by the Speaker in his order. We are of the view that the Speaker has not committed any illegality by stating that he had on various occasions seen and heard these MLAs. It is not a case where the Speaker could transfer the case to some other tribunal. The doctrine of necessity under these circumstances would also be applicable. No illegality can be inferred merely on the Speaker relying upon his personal knowledge of having seen and heard the petitioners for coming to the conclusion that persons in the electronic evidence are the same as he has seen and so also their voices. Thus, even if the affidavit of Ashwani Kumar is ignored in substance it would have no effect on the questions involved.”

28. In these circumstances, the Hon’ble Speaker’s enquiry cannot be scuttled at this qua timet stage.

RE: CHALLENGE TO PARA 2(1)(A) ON THE ANVIL OF BASIC STRUCTURE IS TOTALLY MISCONCEIVED

29. It is respectfully submitted that Prayer (A) of the Writ Petition is not at all maintainable Firstly, it submitted that the challenge to the 97

constitutional validity of the Tenth Schedule was repelled by a Constitution Bench of the Hon’ble Supreme Court in Kihoto’s case (see #’s 13, 25 and 42). It is respectfully submitted that the conclusionson this aspect is found in para 53 which reads as follows “53. Accordingly we hold: “[T]hat the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution. The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections. The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.”

30. It may also be relevant to note that the challenge to the constitutionality of Para 2(1)(a) of the Tenth Schedule is also not maintainable for the reason that the Union of India has not even been made a party to the instant Writ Petition, and as such in the absence of the Union of India being made a party any challenge to the constitutional validity of a provision is not maintainable. In this regard, attention of this Hon’ble Court is invited to the Division Bench judgment of this Hon’ble Court in RadheyShyam Sharma &Ors v The State of Rajasthan &Ors, WP No 6241/2011, wherein it was held that “Indeed, as and when constitutional validity of any provision is challenged, the appropriate Government which has enacted such law has to be made a party, it being a necessary party in such case. It is only then its constitutional validity on the anvil of relevant entries of the constitution can be examined.

Since the petitioner has not arrayed Government of India/Union of India party in this writ petition, and hence we are not in a position to examine the constitutional validity of impugned provision/notification, in their absence.”

31. It is also submitted that a challenge to the validity of a constitutional amendment is impermissible in law before a Writ Court under Article 226 for the following reasons a. The doctrine of ‘basic structure’ is a judicially created test by the Supreme Court, which is only exclusively to be employed by the Supreme Court to test a constitutional amendment. It is akin to the power under Article 142 or the power to declare the prospective overruling of a statute, which is reserved exclusively to the Supreme Court. Therefore, only an Article 32 petition will lie, and not a petition under Article 226. A constitutional provision is not law for the purposes of Article 13, therefore a challenge under 226 is not maintainable b. A basic structure challenge falls within the remit of “substantial question of law as to the interpretation of the Constitution” as found in Article 145(3), and a basic structure challenge is heard by a bench of not less than 5 Judges. Such a co-equal power is not available with the High Courts under Article 226. c. The test of the basic structure has been employed very rarely. And till date, only 6 amendments have been struck down (1 on the ground of rule of law [Indira Gandhi], 4 on the ground of judicial review [Kesavananda, Minerva Mills, L. Chandra Kumar, Kihoto] and 1 on the ground of the independence of the judiciary [NJAC]). It is relevant to note that not a single High Court in the country has ever struck down a Constitutional Amendment on the touchstone of basic structure.

Therefore, prayer which seeks to challenge para 2(1)(a) of the Tenth Schedule on the anvil of basic structure cannot be entertained under Article 226.

32. Lastly, it is respectfully submitted that merely because the constitutionality of a provision has been raised, it cannot be a sequitor that the proceedings under the statute/provision sought to be challenged cannot be allowed to proceed. This is completely against the well settled law regarding presumption of constitutionality of statutes. In this regard, attention of this Hon’ble Court is invited to paragraph 5 of the judgment of the Hon’ble 99

Supreme Court in A.C. Aggarwal v. Ram Kali, (1968) 1 SCR 205 : AIR 1968 SC 1 : 1968 Cri LJ 82

“5. The inhibition of Article 14 that the State shall not deny to any person equality before the law or the equal protection of the laws was designed to protect all persons against discrimination by the State amongst equals and to prevent any person or class of persons from being singled out as a special subject for discrimination and hostile treatment. If law deals equally with all of a certain well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons, for the class for whom the law has been made is different from other persons and, therefore, there is no discrimination against equals. Every classification is in some degree likely to produce some inequality but mere production of inequality is not all by itself enough. The inequality produced in order to encounter the challenge of the Constitution must be the result of some arbitrary step taken by the State. Reasonable classification is permitted but such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the thing in respect of which such classification is made. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.

[Also see Independent Thought v. Union of India, (2017) 10 SCC 800 #161]

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ANNEXURE P - 89

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH) AT JAIPUR

D.B. CIVIL WRIT PETITION NO. 7451/2020

PRITHVIRAJ MEENA & ORS. …..PETITIONERS

versus

HON’BLE SPEAKER, RAJASTHAN ……RESPONDENTS LEGISLATIVE ASSEMBLY & ORS.

WRITTEN SUBMISSIONS BY DR. ABHISHEK SINGHVI, SENIOR ADVOCATE ON BEHALF OF RESPONDENT NOS. 1 - 2 [THE HON’BLE SPEAKER, RAJASTHAN LEGISLATIVE ASSEMBLY]

These humble submissions have been made by the Respondent Nos. 1 to 2 in respect of the captioned writ petition and are being summarised hereinbelow, for the sake of convenience of this Hon’ble Court:

1. The instant proceedings are non-maintainable, premature and without jurisdiction as far as interim injunctive relief is contemplated:

A. The Speaker is the persona designata under the Constitution, who has exclusive, non-transferable, and non-delegable powers and authority to adjudicate on the issues of disqualification. [Speaker, Haryana Vidhan Sabha v Kuldip Singh (2015) 12 SCC 381, para 16, 18-20, 22]

B. The Tenth Schedule is designed and intended to be an autonomous, self- contained code to deal with circumstances of defection and disqualification of the members of a House.

C. Under Para 6(2) of the Tenth Schedule of the Constitution, the proceedings before the Speaker are proceedings in the House, thereby attracting the bar from interference by the Courts under Article 212 of the Constitution. [Para 10, Pandit MSM Sharma v. Dr. Krishna Sinha, (1961) 1 SCR 96,]

D. The Courts cannot intervene or interfere when the proceedings are pending before the Speaker. This issue is no longer res integra and has been laid down in a series of judgments pronounced by the Supreme Court prohibiting any “qua timet” action before the decision of the Speaker. In other words, there is an express prohibition laid down in the judgments pronounced by the Supreme Court on any “qua timet” action before the decision of the Speaker. [Kihoto Hollohan v Zachillhu (1992) Supp 2 SCC 651, paras 109-110; Speaker, Haryana Vidhan Sabha v Kuldip Bishnoi & Ors. (2015) 12 SCC 381, paras 39; Keisham Meghachandra Singh v Hon’ble Speaker Manipur Legislative Assembly, (2020) SCC OnLine SC 55, para 29].

101

E. The scheme of Tenth Schedule, para 6(1), para 6(2) and para 7 envisions a limited interference by the Courts in matters concerning the disqualification of Members even where final orders of disqualification are passed. Even after the final reasoned Order of the Speaker is passed, the Hon’ble Apex Court and the High Courts both have held that there are limited grounds for interfering. [Kihoto Hollohan v Zachillhu (1992) Supp 2 SCC 651, paras at para 110 (placitum d,e), Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council 2004 (8)SCC 747 para 8, 8.1 and Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595 para 121] namely, if principles of natural justice have been violated, or if the Order is malafide, patently perverse or alleged irregularity, none of which applies in the present case as the disqualification petition is at a preliminary stage

2. The Petitioners have sought to circumvent procedure under Tenth Schedule under the garb of a challenge to the constitutional validity of the Tenth Schedule:

A. It is submitted that the same grounds that have been raised by the Petitioners today with respect to the Tenth Schedule being in alleged violation of Article 19(1)(a), and also therefore a violation of the basic structure, was also raised in Kihoto’s case [Kihoto Hollohan v Zachillhu (1992) Supp 2 SCC 651, para 24]. The Hon’ble Court had considered the same and decided that the Tenth Schedule does not violate the basic structure or freedom of free speech and expression [at para 53]. The Petitioners are therefore seeking to achieve indirectly what they cannot achieve directly.

B. It is further submitted that merely because there are new grounds for challenge, Kihoto cannot be re-opened for consideration. By adding a new nuance, the Petitioners seek to circumvent previously decided law in Kihoto. It is submitted that the law as laid down in Kihoto, which has been pronounced by a Constitution Bench of the Hon’ble Apex Court is binding upon this Hon’ble Court. [Somawanti v. State of Punjab AIR 1963 SC 151, para 22] [Also rely upon Mohd. Ayub Khan v. Commissioner of Police, Madras AIR 1965 1623, Para 7]

C. Furthermore, the Petitioners are not entitled to interim, injunctive relief. It is submitted that Courts should be very loath to stay the operation of a statute even in the interim, when constitutionality is in question. At the most, the Court can strike down the statute if it is found to be ultra vires the Constitution at the time of final adjudication. However, the operation of the statutory provisions cannot be stultified by granting an interim order. [Health for Millions v. Union of India (2014) 14 SCC 496, paras 3, 13, 16]

3. The measure of what conduct invites a disqualification under the Tenth Schedule is the sole domain of the Speaker:

A. It is humbly submitted that whether non-attendance of meeting, criticism of the original party constitutes grounds for the Speaker to decide whether conduct falls under Para 2(1)(a) is for the sole consideration of the Speaker. In fact, the Speaker adjudicating on this particular issue/complaint is not per se violation of law. However, if the Speaker had failed to adjudicate on the said issue/complaint, then the same would have amounted to violation of law.

B. In addition to the above, the Speaker is yet to decide on the particular facts and circumstances of each Petitioner and the same shall be done on a case to case basis. However, the Petitioners are not letting the Speaker decide by indulging in litigation at the stage of the first notice itself.

4. The Rajasthan Assembly Disqualification Rules, 1989 do not mandate the recording of reasons in the Notice issued under Rule 7 by the Speaker. 102

A. A bare perusal of the Rules would categorically show that at the stage of Rule 7(1), there is no requirement whatsoever of indicating any reasons in the notice.

B. Neither in Parliament (Lok Sabha or Rajya Sabha) or in any of the State Legislative Assemblies of India, the Disqualification Rules mandate or require the stating of reasons in the notice issued by the Speaker.

C. On the receipt of a petition/complaint for disqualification against a Member of the House, the Rules, at the stage of Rule 7(1), contemplate only compliance with the procedural requirements of Rule 6 of the Rajasthan Assembly Disqualification Rules, 1989. No other stipulation is provided.

D. In any event, whether the Speaker has considered if the petition complies with the requirements of Rule 6 or not, is totally in the realm of procedure and para 6(2) of the Tenth Schedule read with Article 212 bars any judicial scrutiny at this stage.

E. Without prejudice to the above legal submission, a careful examination of the petition/complaint against the Petitioners was carried out by the Speaker on the file and prima facie satisfaction was recorded. The file containing these notings and satisfaction of the Speaker qua each Petitioner was voluntarily offered by the Speaker to be seen by this Hon’ble Court. The same is readily available with the Advocate General (counsel for the Speaker) and have been offered to be shown to the Court both on July 20th-21st, 2020.

5. The time for filing a Reply under the Notice dated 14.07.2020 by the Speaker is more than adequate, is in line with the precedents and Constitutional provisions, and at any rate, has been addressed by the extension of time granted up to 20.07.2020 (completing the period of requirement of notice of 7 days under Rule 7(3)). Moreover, the Rules are merely directory in nature, and not mandatory.:

A. It is humbly submitted that the Disqualification Rules are merely directory in nature, and not mandatory. The same has been confirmed expressly by the Constitution Bench of the Hon’ble Supreme Court in Mahachandra Prasad’s case. Therefore, Rule 7(3) of the Rajasthan Legislative Assembly (Change of Party) Rules, 1989 is merely directory and not mandatory. [Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council, (2004) 8 SCC 747, para 16; Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595 paras 108, 109, 110].

B. It is further averred that Rules are subordinate to the Constitution and cannot be elevated to the status of a constitutional mandate. Furthermore, violation of the said rules could be regarded as mere irregularity and not an illegality. It is further submitted that Natural Justice in the Tenth schedule is completely flexible, contextual and its determination cannot be through a straight jacket formula (Ref: Jagjit Singh v. State of Haryana (2006) 11 SCC 1 – Para No. 44 & Balasaheb Patil (Supra) – Para No. 112). The upholding of Principles of Natural Justice does not depend on number of days, but that reasonable and adequate notice has been given – which it has been in the instant case. For the same, Ravi S. Naik and Sanjay Bandekar vs. Union of India (UOI) and Ors, [1994 Supp (2) SCC 641], wherein the notice with 2 days period to respond was upheld, is being relied upon. 103

C. The judgment of Balchandra L. Jarkiholi v. B.S. Yeddyurappa [(2011) 7 SCC 1] relied upon by the Petitioners, can be easily distinguished from the present case on the grounds that the challenge in the case was effected post the Speaker’s decision, and the main ground of challenge was the Members being provided with an effective hearing and not the number of days.

D. As stated above, the requirement of 7 days’ notice under Rule 7(3) already stands complied with as period of 7 days from July 14th, 2020 ended on July 20th, 2020 and the hearing has been scheduled by the Speaker for 5:30PM on July 21st, 2020 i.e. today. Hence, more than 7 days notice period stands complied with.

6. The reliance placed by Petitioners on G. Vishwanathan’s case to contend that due to the reference to a larger bench of the said case, the ratio in G. Vishwanathan is not a valid precedent, is untenable in law. ,:

A. G. Vishwanathan’s case, relied upon by the Petitioner, was a case of expulsion of a member of party by the parent party and consequent commencement of disqualification proceedings against him. The facts of the present case are not pari materia to G. Vishwanathan’s case at all and hence the reliance on the same by the Petitioners and its further reference to a larger bench in Amar Singh’s case is irrelevant in the present facts.

B. In any event, It is submitted that the G. Viswanathan v. TN Legislative Assembly [(1996) 2 SCC 353] case applies even till today, and it is incumbent on High Courts to follow it in view of judicial discipline. It is further stated that the judgment has been followed even after the referral in the Amar Singh v. Union of India [(2011) 1 SCC 210]. It is further stated that Amar Singh is totally irrelevant to the present discussion as it did not deal with the question of disqualification under Para 2(1)(a) of the Tenth Schedule.

C. In fact, the law laid down in G Viswanathan’s case, which has been subsequently referred to a larger bench in Amar Singh’s case, without a stay on the said ruling or overruling the same by a larger bench, it would still be regarded as law under Article 141 (Ref: Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135 at page 613 [2 judge bench, Para No. 15] and Ashok Sadarangani v. Union of India, (2012) 11 SCC 321 at page 329 [2 Judge Bench, Para No. 29]

7. The Petitioners’ contention that the Show Cause Notice is malafide lacks any basis and proof:

A. It is trite law that the person alleging malafides must state the full facts succinctly. Vague and casual allegations, without any specific pleadings, cannot be accepted as proof of malafides. It is submitted that a bare perusal of the Writ Petition would reveal that no such proof nor pleading have been laid out. [State of Madhya Pradesh vs. Nandini Jaiswal (1986) 4 SCC 566 at Para 39, K. Nagraj vs. State of Andhra Pradesh, 1985 (1) SCC 523, para 36, Kedar Nath Bahl vs. State of Punjab (1978) 4 SCC 336, para 24; State of Bihar vs. PP Sharma, 1991 (2) SCR 1, para 38 F-G, C.S Rowjee vs. State of Andhra Pradesh 1964 (6) SCR 330, at para 347 D-348 C] 104

B. Furthermore, the burden of establishing malafide is very heavy on the person who alleges it. It is further submitted that the Hon’ble Supreme Court has cautioned against the frequency of alleging malafides, and has observed that it becomes the duty of the Hon’ble Court to scrutinise these allegations in every case, so as to avoid being in any manner influenced by them [E.P Royappa vs. State of Tamil Nadu 1974(2) SCR 348, para 398 C-D, 390 E-G; K. Nagraj vs. State of Andhra Pradesh, 1985 (1) SCC 523, para 36; Express Newspaper vs. Union of India, 1986 (1) SCC 133 para 119; State of Bihar vs. PP Sharma, 1991 (2) SCR 1, para 38 F-G; S. Pratap Singh vs. State of Punjab, 1964(4) SCR 733, para 749C].

8. The Respondent No. 1 being the Speaker is a necessary party to any proceedings concerning disqualification, therefore has to be heard:

A. The Speaker is persona designata under Tenth Schedule of the Constitution of India. As per Para 6 of the Schedule, he is vested with the exclusive authority to decide any proceedings on whether a member of a House (Assembly, in the present case) has become subject to disqualification under the Tenth Schedule. He is, thus, a necessary party to the proceedings.

B. Speakers have also defended and appealed various judgments before the Hon’ble Supreme Court and High Courts. Speaker, Haryana Assembly v. Kuldip Bishnoi, (2015) 12 SCC 381 and Speaker v. Utkal Keshari Parida (2013) 11 SCC 794 are few illustrations amongst many.

FILED BY:

[ADVOCATES ON BEHALF OF RESPONDENT NOS. 1 & 2]

105

IN THE SUPREME COURT OF INDIA CIVIL APELLATE JURISDICTION IA NO. ______2020

IN SPECIAL LEAVE PETITION NO. ______OF 2020

IN THE MATTER OF:

The Hon’ble Speaker, Rajasthan Legislative Assembly …Petitioner

VERSUS

Prithviraj Meena & Ors. …Respondents

APPLICATION FOR EXMEPTION FROM FILING CERTIFIED COPY OF THE IMPUGNED ORDER TO, THE HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA,

THE HUMBLE APPLICATION OF THE PETITIONERS ABOVE-NAMED

MOST RESPECTFULLY SHEWETH:

1. The present Special Leave Petition is preferred by the Hon’ble Speaker of the Rajasthan Legislative Assembly against the Impugned Interim Order dated 21.07.2020 passed by the Hon’ble High Court of Rajasthan at Jaipur in D. B. Civil Writ Petition No. 7451 / 2020 titled “Prithviraj Meena s/o Ram Karan Meena & Ors. v/s. The Hon’ble Speaker”. 106

2. The contents of the accompanying SLP may kindly be read as part and parcel of the present application also. The Applicant craves the leave of this Hon’ble Court to refer to and rely on the same and the contents of the same are not being reiterated herein for the sake of brevity and to avoid prolixity.

3. That the Impugned Order was passed on 21.07.2020 and due to the urgency, the instant SLP is being filed with true typed copy of the same.

4. The Petitioner undertakes to file the certified copy of the Impugned Order as and when received and as directed by this Hon’ble Court.

PRAYER

In the facts and circumstances above mentioned the Petitioner prays

that this Hon’ble Court may be graciously pleased to: -

(a) Exempt the Petitioner from filing certified copy of the

Impugned Interim Order dated 21.07.2020 passed by the

Hon’ble High Court of Rajasthan at Jaipur in D. B. Civil Writ

Petition No. 7451 / 2020;

107

(b) Pass such other and further order(s) as may deem fit and

proper to this Hon’ble Court.

AND FOR THIS ACT OF KINDNESS THE APPLICANT AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN & FILED BY

ADVOCATE FOR APPLICANT/ PETITIONER NEW DELHI DATED: 22.07.2020

108

IN THE SUPREME COURT OF INDIA CIVIL APELLATE JURISDICTION IA NO. ______2020

IN SPECIAL LEAVE PETITION NO. ______OF 2020

IN THE MATTER OF:

The Hon’ble Speaker, Rajasthan Legislative Assembly …Petitioner

VERSUS

Prithviraj Meena & Ors. …Respondents

APPLICATION SEEKING EXEMPTION FROM FILING THE OFFICIAL TRANSLATION OF THE ANNEXURE P- 2

THE CHIEF JUSTICE OF INDIA HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA

THE HUMBLE APPLICATION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHEWETH:

3. That the Annexure P- 2, filed by the Applicant/Petitioner(s) herein along with the accompanying Special Leave Petition was in vernacular and could not be officially translated due to paucity of time. The Petitioner herein is filing a translation of the same carried out at his office which is true and correct.

4. The Applicant/Petitioner herein craves leave of this Hon’ble Court to be exempted from filing official translation of the same and to take the English translation of the said annexure filed along with the accompanying petition on record.

5. The present application is being made bonafide and in the interest of justice.

P R A Y E R

In the facts and circumstances the Applicant above named most respectfully prays that this Hon’ble Court may be graciously pleased to: -

(a) Exempt the Petitioner from filing the official translation of Hindi Annexure P- 2 along with the accompanying Special Leave petition.

110

(b) Pass such other and further order(s) as may deem fit in the

circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE APPLICANT AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN & FILED BY

ADVOCATE FOR APPLICANT/ PETITIONER NEW DELHI DATED: 22.07.2020

111

IN THE SUPREME COURT OF INDIA CIVIL APELLATE JURISDICTION IA NO. ______2020

IN SPECIAL LEAVE PETITION NO. ______OF 2020

IN THE MATTER OF:

The Hon’ble Speaker, Rajasthan Legislative Assembly …Petitioner

VERSUS

Prithviraj Meena & Ors. …Respondent

APPLICATION SEEKING LISTING DUE TO EXTREME URGENCY AND EXEMPTION FROM FILING DULY AFFIRMED AFFIDAVIT TO, THE HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA,

THE HUMBLE APPLICATION OF THE PETITIONERS ABOVE-NAMED

MOST RESPECTFULLY SHEWETH:

SYNOPSIS OF EXTREME URGENCY:

3. The Impugned Interim Order has interdicted and restrained the Speaker – Petitioner herein from calling of replies and conducting hearing of the disqualification proceedings pending against the Respondents till 24.07.2020. It is respectfully submitted that the impugned order completely destroys the delicate balance envisaged by the Constitution between the Legislature and the Judiciary.

4. The aforesaid impugned order is in the teeth of the dictum of the Constitution bench of this Hon’ble Court in Kihoto Hollohan v. Zachillhu, [(1992) Supp (2) SCC 651]. It is submitted that the impugned order is a direct intrusion into the exclusive domain of the Speaker and the impugned order is directly against the mandate of Article 212 of the Constitution r/w Para 6(2) of the Tenth Schedule.

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5. That thus the proceedings under the Tenth Schedule before the speaker are proceedings of the Legislature and as such cannot be interfered with as repeatedly held by this Hon’ble. The Impugned Order is thus ex facie illegal, perverse and in derogation of the powers of the Speaker under the Constitution.

6. In such circumstances, it is critical that the Special Leave Petition be heard at the earliest in the interest of justice.

7. That contact details for the AOR for the Applicants are given hereunder: -

(i) Name: Mr. Sunil Fernandes (ii) Mobile No.: +91 9891639491 (iii) Email: [email protected]

8. It is further most respectfully prayed that in the prevailing circumstances, exemption from filing duly affirmed affidavit be granted for the time being.

PRAYER

In the facts and circumstances, it is most respectfully prayed that this Hon’ble Court may be pleased to:

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a) Grant urgent listing of the accompanying Special Leave Petition; b) Grant exemption from filing duly affirmed affidavit in the prevailing circumstances; c) Pass such other order(s) as this Hon’ble Court may deem fit.

AND FOR THIS ACT OF KINDNESS THE APPLICANT AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN & FILED BY

ADVOCATE FOR APPLICANT/ PETITIONER NEW DELHI DATED: 22.07.2020

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IN THE SUPREME COURT OF INDIA CIVIL APELLATE JURISDICTION

SPECIAL LEAVE PETITION NO. ______OF 2020

IN THE MATTER OF:

The Hon’ble Speaker, Rajasthan Legislative Assembly & Anr. …Petitioner

VERSUS

Prithviraj Meena & Ors. …Respondents INDEX

S. Nos. Particulars Copies Court Fee

1. SLP with Affidavit Total: Place: New Delhi Date: 22.07.2020

[SUNIL FERNANDES] Advocate for the Petitioner AOR Code: 1721 A-178, Lower Ground Floor Defence Colony, New Delhi-110024 Mobile: +91 9891639491 Landline/Fax: 011-41084945, 41043573/46702466 Email: [email protected]

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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) No. OF 2020

IN THE MATTER OF

The Hon’ble Speaker, Rajasthan Legislative Assembly …Petitioners

VERSUS Prithviraj Meena & Ors. …Respondents

V A K A L A T N A M A

I, Dr. C. P. Joshi, Petitioner in the above Special Leave Petition do hereby appoint and retain SUNIL FERNANDES, Advocate-on-Record, Supreme Court to act and appear for me/us in the above suit/Appeal/Petition/Reference/Review and on my/our behalf to conduct and prosecute/defend the same and all proceedings that may be taken in respect of any application connected with the same or any decree or order passed therein, including proceedings in taxation and application for Review, and to file and obtain, return of documents, and to deposit and received any money on my/our behalf in the Suit/appeal/Petition/Reference and in application of Review, and to represent me/us, and to take all necessary steps on my/our behalf in the above matter. I/We agree to pay his fees and our pocket expenses, agree to ratify all acts done by the aforesaid Advocate in pursuance of this authority.

Dated this the 21st day of July 2020

ACCEPTED AND IDENTIFIED AND CERTIFIED

(SUNIL FERNANDES) (DR. C.P. JOSHI) ADVOCATE Petitioner ______MEMO OF APPERANCE To, THE REGISTRAR SUPREME COURT OF INDIA NEW DELHI-110001 Sir, Kindly enter my appearance in the above-mentioned petition/Appeal made on behalf of the Petitioner (s)/Appellant(s)/Respondent(s) Yours Faithfully

(SUNIL FERNANDES) Advocate for the Petitioner (s) Respondent(s)/Appellant(s) A-178, Lower Ground Floor, New Delhi Defence Colony, Dated -22.07.2020 New Delhi – 110 024. M. 9891639491, Tel. / Fax :- 011-41084945. E-Mail [email protected]

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MEMO OF PARTIES

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B. CIVIL WRIT PETITION NO. 7451 OF 2020

1. Prithviraj Meena S/o. Ram Karan Meena 9, Biswa Thodabhim, Rajasthan – 321611. 2. Ved Prakash Solanki, S/o Shri Mata Prasad Solanki, MLA, N-35, Gandhi Nagar, Jaipur, Rajasthan – 302007. 3. Suresh Modi s/o Sh. Mohan Lal Modi, Maya Bhawan Neem Ka Thana Distt. Sikar, Jhodpur, Rajasthan – 302006. 4. Vishvendra Singh s/o Brijendra Singh, 18 D, Civil Lines, Jaipur, Rajasthan- 302006. 5. Deependra Singh s/o Late Bharat Singh, Vill. Mau Shrimadhopur, Dist: Sikar Jhodhpur Rajasthan – 332715.

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6. Sachin Pilot, S/o Late Shri Rajesh Pilot, R/o, VPO, 11,Civil Line, Jaipur Rajasthan – 302 006.

7. Bhawarlal Sharma S/o, Manak Ram Sharma, 46-47, Sardar Shahar House Granade Marg Pratap Nagar Kathipura, Jaipur, Rajasthan- 302033.

8. Gajrah Khatana S/o. Late Suraj Bhan 65, Bhagwati Nagar -I Jaipur, Rajasthan - 302006.

9. Indraj S/o. Umrao Lal Gurjar, 578, Ganga Mata Temple Area Pavota Tehsil Kotputli, Jaipur, Rajasthan- 302003.

10. Gajendra Singh Shaktawat, S/o Shri Gulab Singh Sherawat, Shaktawat Farm House, Behind Police Station, Bheender, Udaipur-I, Rajasthan-313027.

11. Hemaram Choudhary S/o Moolaram Choudhary, Vill Adarsh Luk Dhauri Mana Rajasthan-344704.

12. Ram Niwas Gawriya, S/o Shri Raghu Ram, MLA, R/o. Near Marwar School, Jhalra Road, Kuchaman City, Nagaur, Rajasthan-341001.

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13. Amar Singh S/O Sukh Ram Jatav Basti, Basai Post - Bansi Pahlad pur The Roopwas Bharatpur Rajasthan-321001

14. Brijender Singh Ola, S/o Shri Sisrarn Ola 96, Gourav Nagar, Civil Lines, Jaipur, Rajasthan-302006

15. Murari Lal Meena S/o Sh. Narayan Lal Meena R- 5H/101-102, Indira Gandhi Nagar, Jaipur, Rajasthan- 302017

16. Mukesh Kumar Bhakar S/o Surja Ram Ladun, VPO, Khariya Teh: Didwana Dist: Nagaur Rajasthan – 341001

17. Rakesh Parekh, S/o Shri Rameshwar Lal Parikh, Vill Miyan, Bhagwan pura, Sarwad, Ajmer, Rajasthan- 305403

18. Harish Meena, S/o Shri Narayan Meena, MLA, No, 10, Jawahar Nagar, Jaipur- 4 Rajasthan- 302004

19. Ramesh Chand Meena S/o. Shankar Lal Meena H NO 52, Vill Naya Gaon Post Ranipura Teh: Madrayal Karauli Rajasthan- 322251

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VERSUS

1. The Hon'ble Speaker Rajasthan Legislative Assembly, Jaipur, Rajasthan – 302005.

2. The Secretary Rajasthan Legislative Assembly, Jaipur, Rajasthan – 302005.

3. Mr. C.P. Joshi Hon'ble Speaker, Rajasthan Legislative Assembly, 49, Civil Lines, Jaipur - 302 006.

4. Shri. Mahesh Joshi Chief Whip Indian National Congress Legislature Party, B-20, Sain Colony, Near Railway Station, Jaipur, (Rajasthan)